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Aging Boomers, dementia, and sexuality a potent mix: Dykeman

As the Baby Boomer cohort slides into their golden years there are myriad legal issues that arise, including dealing with dementia and sexual behaviour says Toronto health lawyer Mary Jane Dykeman.

While there have been numerous headlines about residents in care facilities with dementia attacking other residents and staff or being otherwise violent, another aspect that doesn't get much media spotlight is sexual expression versus sexual aggression, she tells AdvocateDaily.com.

“We don’t tend to think of the elderly, especially those in different stages of dementia, expressing themselves sexually,” says Dykeman, a partner with DDO Health Law. “But it’s a growing issue for retirement and long-term care homes where they live. There is a big range of activity, from choices made by capable residents, through to aggressive sexual behaviours by those who are no longer cognitively intact. It is fraught, to say the least, families are sometimes involved, and there are potential consequences, right up to criminal charges.” 

Dykeman and Judith Wahl, a prominent Toronto elder care lawyer, have spoken across the province together to educate staff of homes on how to deal sexuality in long-term care settings, including residents with dementia.

On the one hand, Dykeman says, there’s the relatively simple scenario of someone with dementia who is touching staff or other residents inappropriately or making sexually charged comments.

“It is clearly unwanted sexual activity, but is the resident aware what they are doing is wrong?” she asks. “They may not have that mental capacity.”

“The operators and staff, however, have to be aware that the residence is not only a workplace but home to other residents and there’s potential legal exposure if the matter is not handled properly.”

Then there’s the "scenario of a resident engaging in solo sexual activity that is normally reserved for private settings – yet while this is the resident’s home, it may be a shared space, either with a roommate or with staff who work there," says Dykeman.

"It may be as simple as being respectful of the need for privacy, and the fact of shared space – if the resident is able to remember this," she notes. “In many cases, staff will need to continually redirect the person.”

“A staff member may walk in on them but what should they do?” she asks. “It’s their room, they are entitled to privacy. They may or may not be embarrassed – and staff may be caught off guard and not know how to respond. On the other hand, if this is happening in the halls, the lounge, the common areas, how do we redirect them to a more appropriate space?”

A spouse or partner may continue to live in the community yet want to pursue sexual activity at the home.

“A spouse is visiting and they engage sexually in the room,” she says. “It might be consensual but depending on the stage of the disease, the resident with dementia at some point may no longer be able to give consent. And they may not be able to withdraw consent, which anyone engaging sexually must be able to do, according to the Supreme Court of Canada.

"That’s where it starts to get complicated. Do you let it go on? Stop it? Call the police? Are family members engaged, such as an attorney for personal care who makes decisions about the person’s safety," asks Dykeman.

"It certainly isn’t treatment under the Health Care Consent Act for which substitute consent is required, yet families will sometimes be very concerned that a resident is at risk. Other times, a resident is making a capable choice and this may mean, it is not an item for discussion with family members unless the resident permits it. And while birth control is no longer a factor, she also notes that some homes provide sessions on safe sex, including preventing sexually transmitted infections.”

When two residents become involved, it can be even more complex, says Dykeman. Another scenario might involve two people with dementia engaging sexually, she says, and again the test is whether each can consent.

"The legal test for capacity to consent to sexual activity is not as clear," she says. "And, a cognitively intact resident may seek out other residents with diminished capacity, knowingly or unknowingly."

It’s a looming problem, says Dykeman, because as Boomers age, more cases of dementia in long-term care situations will arise.

It’s not that residents with dementia are suddenly acting out sexually because of their disease, in fact, many do not express their sexuality in any obvious way, she says. 

“That said, seniors don’t all check their sexual feelings at the door when they age or enter into care,” she says. “One of the symptoms in certain types of dementia is the loss of inhibition. They may not have any filter or they may not realize where they are and who they are with.”

The issue around sexual behaviour and seniors isn’t an epidemic, she says, but her office does get calls about it at least once a month.

“It’s why we went out on the road to raise awareness and start to suggest how operators and staff should deal with this,” she says. “We do suggest health care operators have a frank discussion with staff around what they are seeing. We often work with homes to create policies or at least roll it into some kind of framework so staff are well-equipped to handle the situation.”

It’s not an easy subject to discuss, she admits, especially with the adult children of the residents — who may or may not have any right to the information — and, sometimes, the staff themselves.

“It’s very difficult,” she says. “There are issues of privacy, consent, individual choice, right through to acts that could be considered criminal. The main thing is to always keep the resident safe and secure, and to watch that fine line between capable choice and abuse.”

 

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