Legal: QCAT gives guidance on physical contact

The principles relevant to determining the appropriateness of physical contact are sometimes unclear, and often misunderstood.

The principles enunciated by the Queensland Civil and Administrative Tribunal (QCAT) arose in a context where physical contacts had to be considered in the light of whether or not the teacher had behaved “in a way that does not satisfy the standard of behaviour generally expected of a teacher”.

The tribunal noted in respect of that concept that: “the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers”.

The matter was of some complexity, but the tribunal made the following comments.

“None of the contact was violent, indecent or sexual. It was not accompanied by indecent or provocative comments. It did not occur over an extended period of time. It is accepted the contact complained of was accidental and resulted from physical contact initiation by Mr X to either comfort or encourage a child. In the case of Allegation 4 the contact itself was accidental and minimal.

“Of the other four incidents, we find the physical contact did relate to valid educational purposes such as behaviour support, management and care of students. In three cases Mr X was attempting to care for students who reported feeling sick. His actions and words, taken together and within context, indicate an appropriate response. In the fourth incident, Allegation 3, Mr X was providing behaviour support by praising a student for good behaviour. This incident did not involve touching a sensitive body area.”

The tribunal dealt with an interesting point of law, the nature of the test to be applied. The Queensland College of Teachers submitted that the “necessary test” applied, while the teacher’s solicitors (the QTU solicitors) submitted that the proper standard is the “reasonable test”.

“The college submits that the physical contact was discretionary and educationally unnecessary and the children’s emotional wellbeing was affected. It submits that ‘physical contact should relate to valid educational purposes such as behaviour support, management and care of students. It should otherwise be responsive and age appropriate’. Thus consideration of community/professional expectations and standards requires contact to be limited to what is necessary. We refer to this as the ‘necessary test’.”

“Mr X submits that the proper standard is whether the conduct is reasonable in the circumstances. We refer to this as the ‘reasonable test’. He argues this is a test that is well understood and widely used in many areas of law, both civil and criminal. It is referred to in the Blackstone’s Commentaries in 1825. He says it would be absurd if it could be said conduct was reasonable but not necessary and it was therefore inappropriate. This would result in a burden on teachers that is simply too high.”

The tribunal held that the reasonable test was the appropriate test to apply.

“No harm has been identified which demonstrates a need for a higher standard. There is no evidence to suggest those children who respond well to spontaneous physical contact, such as a tussled head, or a ‘high five’, accompanied by a ‘well done’, should be denied it.

“The reasonable test gives sufficient protection to students without imposing artificial restrictions that remove their school life one step further from their after school world.”

In relation to relevant considerations, the tribunal commented: “When assessing the incidents of physical touching against the standard of expected behaviour, both parties agreed many factors could be considered to establish the context of the interaction. These include: the age of the students, whether they have a rapport with the teacher who is in turn aware of their needs and requirements, the level of distress of the student, the extent of the physical injuries, whether they are ‘special needs’ students and the policy of the school, which would in turn impact on the expectations of the students”.

In this case, it was determined that there had been no breach by the teacher and no disciplinary action was taken.

The more one engages in physical contact with students, the more one is at risk. However, it is also important for teachers to know that if allegations are brought against them, appropriate principles such as these will be applied in determining in a professional registration context whether their physical contact calls for any disciplinary sanction.

Our advice in essence is that teachers should exercise caution, should communicate with the school administration, and discuss as a school staff what it is considered appropriate in that particular environment, and then ensure that their conduct is consistent with the agreed protocols.

Andrew Knott                                                                                                                 TressCox Lawyers

Queensland Teachers' Journal, Vol 121 No 2, 1 March 2016, p29