281. Detention of individuals lacking physical or mental capacity.

In cases where limitations are placed on the liberty of an individual¹ for whom there are issues of capacity particular emphasis has been placed on the three elements constituting a deprivation of liberty²:

1.  

   (1)     a confinement to a certain limited space for a not negligible length of time;

2.  

   (2)     an absence of valid consent to the confinement; and

3.  

   (3)     confinement which is attributable to the state.

The application of these principles, and especially the first, will often turn on a highly fact-specific analysis of the degree or intensity of restraint³. However, the Supreme Court has held that what it means