EKR (Guardianship)

This case involves a 51-year-old woman, EKR, who has expressed a desire to leave her current residence at Millbrook Rise, a facility managed by Mental Health Services. EKR has a disability, which she describes as schizophrenia, and lacks the ability to make reasonable judgments. The applicant is concerned that EKR's decision to leave the facility may negatively impact her health and wellbeing, and that she is vulnerable to exploitation by others.

The legal issues in this case revolve around the powers of a guardian under the Guardianship and Administration Act 1995 (GAA) and the Mental Health Act 1996 (MHA) and the extent to which these two Acts overlap or conflict. The Board must determine whether EKR's disability renders her incapable of making reasonable judgments, whether she is in need of a guardian, and if so, what powers should be granted to the guardian.

The Board concluded that EKR's disability does render her incapable of making reasonable judgments, and that she is in need of a guardian. The Board disagreed with the Solicitor General's advice that a guardian's powers are limited to the 'person responsible' role under the MHA. The Board found that the MHA does not cancel out the custodial powers of a guardian under the GAA and that the two Acts are complementary, not competing forms of protection. The Board also found that the principle of least restrictive alternative applies to both Acts, and that the appointment of a guardian can provide necessary protections for EKR that a defence of necessity cannot.

Based on these findings, the Board ordered that the Public Guardian be appointed as a limited guardian for EKR, with powers to decide where she will live and to consent to her health care. The Board also directed the guardian to decide that EKR will live at Millbrook Rise and to give consent to Mental Health Services for that accommodation unless and until the guardian determines that alternative accommodation will meet the best interests of EKR.