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