The updated abuse guidance issued on June 29, 2022, stresses that facilities must take steps to ensure residents are protected from abuse, including evaluating whether the resident has the capacity to consent to sexual activity.
To understand how to appropriately evaluate a resident’s capacity to consent, you must first understand the definition of capacity. According to Wex legal dictionary, “Capacity refers to the ability to make a rational decision based upon all relevant facts and considerations”. The legal standards and criteria for capacity to consent to sexual activity varies across states, but the most commonly endorsed criteria include²:
- Knowledge of relevant information, including risks/benefits
- Understanding or reasoning which is consistent with individual values
- Voluntariness of consent, free from undue influence or coercion
Using this criteria, key considerations for assessing capacity to consent to sexual activity include:
- Does the resident understand the nature of the sexual activity in which he/she is engaging?
- Does the resident understand the risks of sexually transmitted diseases?
- Does the resident know who to tell if his/her partner desires the sexual activity?
- Is the resident able to determine appropriate times and places to engage in sexual activity?
- What is the resident’s current relationship with the desired sexual partner? For example, does the resident think his/her sexual partner is a spouse when he/she is not? Do they consistently recognize each other? Can they state the name and room location of desired partner?
- Does the resident have the capacity to understand sexual options and the potential consequences of sexual choices and are the resident’s decisions consistent with his/her values?
- Is the sexual choice a voluntary choice?
- Can both partners answer questions about their relationship and do they both indicate they desire sexual contact?
- Is the resident able to say “no” to unwanted sexual contact?
- Can the resident state to what extent he/she wishes to participate in sexual activity? For example, kissing/touching versus sexual intercourse.
- Does the resident have the ability to report unwanted sexual contact?
Additional factors you should consider when assessing a resident’s capacity to consent include, evaluation of resident’s diagnosis, cognition, psychosocial status, and personal values.
Remember that just because a resident has a diagnosis of dementia or exhibits cognitive impairment, it does not always mean that they do not have the capacity to consent. Therefore, it is important to use established criteria when assessing capacity to consent, and not deem a resident incapable of consenting solely on the basis of his/her cognition. In addition to the factors listed above, when assessing capacity to consent in residents with dementia, consideration should be placed on whether or not the relationship in question is consistent with the type of relationship the resident would have pursued before developing dementia.
Shelly Maffia will present on this topic during the Long Term and Post-Acute Care Law and Compliance Conference in New Orleans, LA March 1-3, 2023. Learn more and register. You may also access the webinar §483.12 Freedom from Abuse, Neglect, and Exploitation on demand at Deep Dive into Federal Regulations in a Year – Proactive LTC Consulting (proactiveltcexperts.com).
Contact Proactive LTC Consulting for expert assistance in implementing effective Abuse, Neglect and Exploitation Prevention Procedures, investigating abuse allegations and developing a plan of correction for abuse-related deficiencies.
- AMDA The Society for Post-Acute & Long-Term Care Medicine. (2016). Capacity for sexual consent in dementia in long-term care. https://paltc.org/?q=amda-white-papers-and-resolution-position-statements/capacity-sexual-consent-dementia-long-term-care
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists. American Psychological Association and American Bar Association. Available at http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf. Accessed 01/03/23.
- Centers for Medicare and Medicaid Services. (2017). Nursing homes- Centers for Medicare and Medicaid Services. Retrieved from https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Nursing-Homes.html
Written By: Shelly Maffia, MSN, MBA, RN, LNHA, QCP, CHC, CLNC, CPC
Director of Regulatory Services
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