Consensual sexual relations among residents: Risks and responsibilities

Residents at your agency will naturally form romantic relationships and may want to express and enjoy these relationships through consensual sexual relations. The definition of “whole-person care” recognizes the sexual needs of your agency’s residents.

Agencies may face ethical dilemmas that require them to balance respect for residents’ sexual autonomy with the need to protect residents from harm. Research shows that few facilities have policies around resident sexual activity. But experts have created guidance your agency can use to minimize risks of sexual activity for residents and the organization while respecting autonomy, privacy, and other resident rights.

Considerations Around Sexual Relations in Care Facilities

Assisted living facilities face state regulations but have no unified federal rules and regulations. Nursing homes face both federal and state regulations. Neither industry has any official regulations regarding sexual relations among residents.

In nursing homes, “there is a tendency for facilities to fall back on an approach [to resident sexual relations] that does not require the additional effort needed to discern residents’ preferences in this area and does not challenge the comfort of the staff,” Eran Metzgar, M.D., writes in “Ethics and Intimate Sexual Activity in Long-Term Care.” “This default position, however, runs the risk of compromising residents’ quality of life and further impinging on their freedoms within an institutional setting.”

An uncoordinated approach also means responses to resident sexual activity depend on the personal attitudes of the employees who discover it. Without training or policy, staff members may make decisions based on their own beliefs around sexuality, or their embarrassment with the subject. And since families make most decisions about assisted living, facility staff often decide how to handle resident sexual activity based on family members’ opinions, Ann Christine Frankowski and Leanne J. Clark write in “Sexuality and Intimacy in Assisted Living: Residents’ Perspectives and Experiences.” 

Research on the percentage of assisted living and long-term care residents who have dementia is lacking. But indirect estimates suggest that anywhere from 14% to 70% of people in assisted living have some amount of cognitive impairment, Frankowski and Clark write. Dementia can produce effects including increased sexual expression, inappropriate sexual behavior, or sexual aggression. But “...even though dementia can complicate the understanding of sexuality and intimacy within the context of assisted living, it is possible to differentiate between healthy and unhealthy or wanted versus unwanted sexual behavior,” Frankowski and Clark say.

Most individuals with intellectual disabilities don’t receive appropriate or adequate sexuality education, Nora J. Baladerian, Ph.D., noted in a presentation to the National Adult Protective Services Association. Intellectual disabilities originate before age 18 and are characterized by significant limitations in both intellectual functioning and adaptive behavior, according to the American Association on Intellectual and Developmental Disabilities.

Experts have found that capacity to consent to sex can vary over time, Baladerian noted. Someone could be incapable of consenting, but later receive training, education or counseling that increases their understanding and enables consent. Someone could also be capable of consenting, but later lose that capability due to time and additional disability.

Assess Resident Capacity for Consent

Guidelines have emerged from case law on how to determine whether someone has the capacity to consent to sex. While the guidelines vary across states, they most often include:

• The person must understand the distinctively sexual nature of the conduct
• The person recognizes that their body is private, and they have the right to refuse to engage in sexual activity
• The person recognizes the sexual contact could create health risks and physical consequences
• The person understands there could be negative social or societal response to the sexual behavior

The Wisconsin Board of Aging and Long-Term Care Ombudsman Program recommends that education about resident sexual activity take place with all stakeholders:

• Residents should receive education about their right to maintain and develop any mutually consensual relationships, including intimate or sexual ones
  • Education should take place at admission, at resident council meetings, and individually as needed.
• Employees should receive education at orientation and annually about intimate and sexual relationships in the long-term care setting
  • Facilities should consider training topics including consent guidelines for intimacy and sexuality, resident rights, abuse and neglect, Alzheimer’s disease and related dementias, ethics and boundaries, domestic violence, and sexual assault and legal decision making.
• Residents’ families, or any other parties with responsibility for the resident, should receive education about resident rights at the time of admission
  • That orientation should include an overview of the facility’s general policy on resident intimate or sexual relationships
  • Families, health care agents, and guardians should receive education about their level of power or control in resident relationships
  • Family members or legal decision-makers don’t have the authority to restrict intimate or sexual relationships when the resident is assessed to be a consenting adult.

After Consent Is Assessed

The Wisconsin aging board recommends staff begin a consent assessment anytime intimacy is identified in a facility, in the event the intimacy leads to sexual contact. Staff must recognize that sharing information or reporting activity of a consenting adult could be considered a breach of rights if residents don’t want that information shared.

If two residents are determined to be able to consent to sexual contact, the care plan will focus on the rights associated with that relationship. Facilities will need to consider how to provide privacy for residents who wish to engage in consensual intimate or sexual relations. Staff will need coaching on how to protect the privacy and dignity of residents who engage in consensual sexual activity. Options include using “Do Not Disturb” signs or offering a separate room for privacy when residents do not have private bedrooms. Staff may also need to provide educational materials and discuss potential risks of the sexual activity, like falls, infection, or a cardiovascular event.

If one or both residents cannot consent to a sexual relationship, the care plan should focus on balancing the residents’ right to associate with protecting them from abusive or exploitative sexual contact. Staff should offer the residents opportunities to socialize in a public, supervised area, with checks to ensure sexual contact and unwanted affection do not arise. The staff should also offer activities the two residents can participate in together with supervision.

If assessments find one or both of the residents’ sexual behavior inappropriate or unwanted, the aging board recommends interventions before sexual contact takes place.

• Use assessment interviews to ascertain the underlying reason for the resident behavior. Does the resident need to be toileted? Are they lonely or bored?
• Use distraction, redirection and activities to help stop the behavior. Redirecting the resident will work better if the activity interests them.
• Make frequent supervision checks.
• As a last resort, use the facility environment to separate residents, such as locating resident rooms on opposite wings, floors, or placing one resident on a secured unit.

The aging board notes that many lesbian, gay, bisexual, and transgender residents have experienced discrimination and may fear service providers will have a negative reaction to their LGBT identity. Facility staff need to learn to recognize reluctance to reveal LGBT identity. The facility must honor all resident rights, all relationships, and work to make all residents comfortable regardless of their sexual identity.

Sexuality evolves for everyone throughout their lives. Any facility that does not recognize and address this can’t fully meet residents’ needs or prepare for the risks residents and the organization may face. Thankfully, numerous resources exist to help your agency and its residents navigate the risks and rewards of consensual sexual activity at all stages of life.

Resources

“Ethics and Intimate Sexual Activity in Long-Term Care,” Eran Metzger, M.D.: https://journalofethics.ama-assn.org/article/ethics-and-intimate-sexual-activity-long-term-care/2017-07

“Sexuality and Intimacy in Assisted Living: Residents’ Perspectives and Experiences,” Ann Christine Frankowski and Leanne J. Clark: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4283937/

“NAPSA Webinar: Addressing Capacity to Consent to Sex for Those With Intellectual and Developmental Disabilities,” Nora J. Baladerian: https://docplayer.net/186463262-Napsa-webinar-addressing-capacity-to-consent-to-sex-for-those-with-intellectual-developmental-disabilities-may-21-2020.html

“Recommendations for Addressing Resident Relationships,” Wisconsin Board of Aging and Long-Term Care Ombudsman Program https://ltcombudsman.org/uploads/files/issues/consent.pdf