Least restrictive may be restrictive but more enabling of liberty

Does anyone have information on the least restrictive principle where ordinarily it would be viewed as restrictive but is not the case as it enables more liberty? If so where does this case law/legislation come from so I can understand any nuances in application?
Many thanks,

Without providing a little more detail, it is somewhat more difficult to consider your question. I am struggling to think how something that is more restrictive could promote someone’s Article 5 rights.

Where I typically start is Section 6 of the Human Rights Act. This places a duty on public authorities and those who discharge the functions of said authority to act in such a way that you do not breach that person/s rights.

Where rights are qualified, and in the main we deal with Articles 5, 6, 8 in our every day work, and this is where much case law is developed, you then have to consider if your interferences with 5,6,8 are lawful. As part of testing the lawfulness, yes you can look at caselaw and ascertain if it applies to your case, but often caselaw is very specific and developed from the very facts of each case. However, some caselaw can be applied more generously. The latter is more helpful, than the former.

Where there is no caselaw, or it cannot be readily applied, my approach to decision making is to ask, if what is intended, necessary and proportionate. I also add in the worst case scenario. What would happen if I didn’t make an application for example? You can also throw into the mix, the question of being risk positive and risk averse. Are we looking to eliminate all risk, or reduce risk?

Now the least restrictive principle, in my opinion, would consider all of the above. It’s something that I regularly apply in my workplace, often out of necessity as there is little Article 8 rights caselaw for detained restricted patients.

Look to the MHA Code of Practice, as well as the MHA Reference Guide. Use the search function here on MHLO.

Do you mean something like preventing a patient from leaving community accommodation unescorted as an alternative to continued detention in hospital?

No I don’t. Its more how much the restriction is enabling more liberty. So that the restriction becomes actually the least restrictive. It’s quite nuanced and particular so it’s why I always look at the full transcripts of case law to see if it is particular to my exaqmple. Hope that makes sense.

That’s a really good summing up. Thank you.