Q:
Is there a specific assessment for determining a resident’s capacity to consent to sexual activity?
A:
While you may find samples of assessments that are identified to be used for determining a resident’s capacity to consent to sexual activity, you will find that the majority of these do not address all of the elements that would be needed to establish this capacity. In the regulatory requirements at §483.5, F600 – Free from Abuse and Neglect, CMS defines that “Sexual abuse,” is “non-consensual sexual contact of any type with a resident.” They further stipulate that “generally, sexual contact is nonconsensual if the resident either: appears to want the contact to occur but lacks the cognitive ability to consent; or does not want the contact to occur.” It is then the responsibility of the facility to utilize an assessment process that encompasses all of the components that would support whether or not the resident can consent to sexual activity.
At a minimum, the assessment components need to address the following areas:
- Knowledge of relevant information, including risks and benefits;
- Understanding or rational reasoning that reveals a decision that is consistent with the individual’s values (competence); and
- Voluntariness of consent, free from undue influence or coercion
Areas to support knowledge of relevant information would include determining if the resident knows the nature of the sexual activity in which they are engaging; the risks of STDs, and appropriate times and places for particular sexual activities. Questions that would help to determine understanding or rational reasoning would include does he/she have capacity for the reasoning process inherent to sexual consent including: Do they understand their sexual options?; Do they understand the consequences of sexual choices?; and Is there consistency with his/her values and preferences? For the determination of voluntariness, the resident should be assessed to determine if the sexual choice is a voluntary choice, or are they being coerced or threatened in some way to force them into sexual activity. A key element in assessing capacity to consent is determining if the resident has the ability to refuse sexual advances.
Additional factors that require consideration in the assessment process include the following:
- Diagnosis: The Dementia diagnosis itself is not necessarily indicative of incapacity
- Cognitive Factors
- Attention
- Memory
- Psychiatric and Emotional Factors
- Depression
- Anxiety
- Fear of abandonment/loneliness
- Personal Values
Other important considerations in assessing a resident for the capacity to consent to sexual activity is who will be completing the assessment process; how often will it be done, and what changes in resident status would indicate the need for a re-assessment to be completed. CMS states that “Cognitive functioning may change due to health issues such as, but not limited to stroke, dementia, depression/psychiatric illnesses or other impacts such as medication(s), hearing/visual loss, and stress.
Therefore, the facility should continue to monitor and reevaluate a resident’s capacity to consent over time, as needed, based on the individual resident’s physical, mental and psycho-social needs.”
Regardless of what tools or strategies the facility chooses to incorporate into their assessment process, it is ultimately the facility’s responsibility to have a system in place to protect all residents from abuse while also protecting and promoting the resident’s rights. For more information and resources on developing this assessment process, join us for the Abuse & Neglect Program Check-up Webinar series where the 8/21/24 topic will be Capacity to Consent to Sexual Activity.
Janine Lehman, RN, RAC-CT, CLNC
Director of Legal Nurse Consulting
Was this article helpful? Access weekly insights when you sign up for our weekly newsletter!