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A need for sexuality policies in long-term care homes?

A recent case in Iowa that focused on questions about when a person is no longer mentally capable of consenting to sex highlights important legal issues that are becoming increasingly important in Canada’s aging population, says Toronto health lawyer Mary Jane Dykeman.

“The question of consent can certainly be complicated where a resident is experiencing cognitive decline, including as a result of later-stage Alzheimer's and other dementias. For that reason, it raises the issue of whether there is a need for sexuality policies in long-term care homes,” she tells AdvocateDaily.com

"And even beyond having a policy, consideration must be given to how to implement it and to equip staff to recognize situations that reflect resident choice, versus those that are potentially abusive."

Dykeman, partner at Dykeman Dewhirst O’Brien LLP, says long-term care homes will inevitably face situations where a spouse or companion living in the community (or even in the home) wants to have sexual relations with a resident but eventually that resident can no longer consent. 

Dykeman, who has written such policies for long-term care homes, says the issue is unquestionably complex.

In the case of the Iowa man, a jury found that the 78-year-old man was not guilty of sexually abusing his wife, reports CBS News.

He was accused of having sex with her at a nursing home after he was told by her health care providers and her adult children that she was no longer capable of consenting because she suffered from an advanced stage of Alzheimer’s. She has since died, says the article. 

Defence counsel in the case had argued that a guilty verdict could have widespread implications that interactions between spouses could be interpreted as sexual abuse; prosecutors told the court that a not-guilty verdict would put others with dementia at risk, says the newspaper. 

Dykeman says that while many may be reluctant to talk about sex in long-term care homes, the fact is that these facilities have a legal duty to provide a safe environment. And it must be clear, a resident does not automatically lose capacity to make choices about sexuality by virtue of admission to a home, nor as a result of age or a particular diagnosis. A long-term care home is the home of the resident, and as such, provided the resident has the capacity to do so, he or she must be able to make capable choices regarding sexuality, even where those choices (such as a new partner who is not a spouse, or more than one partner) make family members or staff uncomfortable. Nor is there a single, easy test to determine capacity to consent to sexual activity.

Dykeman says there are a number of emerging issues that relate to the issue of sex and long-term care homes including: the fact that sexually transmitted diseases are on the rise for seniors; residents are free to engage in social media and online dating; mobile residents may bring home casual partners; there are situations where spouses live in a long-term care home but one is making new choices around sexuality; and of greater ethical and legal import, when one spouse relies on past consent for sex. 

In one instance, a home Dykeman has worked with raised the fact that to say no to a supportive spouse could lead that person to go “outside the marriage” for sex.

“The home certainly understood the legal view,” says Dykeman. “But we all recognize that these situations are fraught.”

Dykeman says some long-term care homes in Ontario are developing sexuality policies, which may go some way to: supporting the sexual expression of capable residents, engaging residents in safer sexuality (for example, making condoms available) and helping staff identify and respond to situations that are potentially non-consensual.

The tensions between a right to sexual expression and the duty to prevent abuse are inherent, she says.

“Many of the homes’ mandatory duties have ties to resident safety, which in addition to maintaining safe premises and preserving resident choice and dignity, includes the duty to prevent various types of abuse, including sexual abuse,” she says. "At the same time, support and warmth from a person who loves the resident is encouraged. What is more problematic is, what is the line that should not be crossed?"

On the issue of consent itself, Dykeman points to the Supreme Court of Canada’s decision in R. v. J.A., 2011 SCC 28, in which the high court had to deal with the issue of whether a woman could legally give consent to sex in advance, including to be choked into unconsciousness for the purpose of having sex. While the case didn’t arise in connection to sex in a long-term care home, the court clearly said: a person must be able to actively consent in every phase of sexual activity and cannot consent in advance. 

Dykeman says this means that it doesn't matter that a person used to actively participate, if they can no longer give a capable consent. 

“Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point,” said the high court. 

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