8.Section 1 defines “restraint” and “seclusion” establishing, in broad terms, the activities that are being regulated under the Act. The definition of restraint captures physical contact by a member of staff of an education provider “which has the intention of significantly restricting the physical movement of a pupil”. The use of “significantly” in the definition is intended to make clear that only meaningful or material restrictions of movement amount to restraint, and to exclude minor or incidental physical contacts from the statutory definition. Seclusion covers anything done by a member of staff with the intention of isolating a pupil from other pupils.
9.The definitions relate to the actions of a member of staff of an education provider. Where a school is under the management of an education authority, the education authority is the ‘education provider’. In the case of an independent school, the education provider is the proprietor of that school; and for a grant-aided school it will be the manager of the school. There are eight grant-aided schools in Scotland, seven of which are special schools.
10.Section 1(3) provides that a member of staff of an education provider includes anyone ‘acting under the authority of an education provider’. In addition to covering all teachers, assistants and support staff, it would also cover any contractors or other persons allowed into schools to provide services or work at events. Tying the definitions to things done by members of staff makes clear that the Act does not cover the use of seclusion or restraint by pupils on each other.
11.Subsection (4) allows the Scottish Ministers, through regulations, to modify the definitions in this section in order to exclude actions that do not carry a significant risk of harm, or to include additional actions that do carry a significant risk of harm. Any such regulations will be subject to the affirmative procedure and a consultation requirement.
Commentary on Sections Section 1 – Restraint and seclusion