There is a complex framework of regulatory controls relating to the provision of health and disability services to mentally incapacitated persons including the Health and Disability Commission (HDC), the National Advocacy Service, the Retirement Commissioner, the regulation of registered health practitioners by registration authorities, the monitoring of health and disability places of detention by the Ombudsman, and the threat of possible criminal liability for failing to meet duties owed to a vulnerable adult (Human Righs Commission, 2018). The office of the ombudsman also provides a formal monitoring function, and this has recently been extended to monitoring and inspection of privately run facilities that include secure dementia units (Ombudsman New Zealand, 2021).

As noted earlier, while there are regulatory controls in place, they rely on concerns being raised by the individual or family members and do not take into account that many people who lack capacity to make decisions do not have people available to advocate on their behalf. Some regulatory controls such as certification audits of residential care facilities and DHB monitoring do not require a complaint to be laid but these review mechanisms are usually more focussed on policies and procedures rather than the individual. There are generally no regulatory controls for those lacking capacity who are not in institutions.

References:

Human Rights Commission. (2018). This is not my home: A collection of perspectives on the provision of aged residential care without consent. Auckland Human Rights Commission.

Ombudsman New Zealand. (2021). Aged care monitoring. Ombudsman website. Available from: https://www.ombudsman.parliament.nz/what-we-can-help/aged-care-monitoring.