Abstract
Some of the most sensitive and controversial issues in nursing homes today involve intimacy and sex among nursing home residents with dementia. Due to longer life expectancies and the many baby boomers in their 60s and 70s, these issues are likely to arise with increasing frequency. This chapter focuses on the inherent difficulties faced by nursing homes in deciding whether dementia patients have capacity to consent to intimate sexual relationships. The difficulties are rooted in the very nature of both dementia and sex. Patients with dementia have fluctuating cognitive abilities, sometimes during a single day, and sexual acts—such as caressing and sexual intercourse—have differing cultural and social significance. In addition, nursing homes must protect patients from sexual exploitation and harm, while also protecting their right to enter into satisfying, self-affirming, intimate sexual relationships. Due to these complexities, nursing homes need clear standards for determining whether residents with dementia have capacity to consent to sexual relations. In order to support patient autonomy and make the best decisions for patients, nursing homes must also determine whether to follow the patients’ precedent values and advance directives or give priority to their current well-being.
This chapter reviews the varying approaches to consent to sexual activity by dementia patients and concludes that patient consent should include determining whether the patient wants the sexual relationship, can communicate a request to stop, and can respect a partner’s request to stop. The chapter also analyzes the continuing scholarly discussion of whether decision-making regarding sexual relationships should take prior values into account. This analysis includes a discussion of the philosophical and legal bases for using substituted judgment, best interests, and functional competence approaches and recommends a balancing approach that takes both the patient’s experiential and critical interests into account.
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Notes
- 1.
Malone states “Existing policies on sexuality in [long-term care] have been heavily criticized in the literature, mainly due to their absence” (p. 34).
- 2.
Spece notes that “nursing homes often discourage ongoing intimate relationships because of logistical, financial, and other considerations” (p. 909).
- 3.
Lyden notes that individuals with severe disabilities may “require assistance from another person to have sexual intercourse” (p. 18).
- 4.
Spece Jr., Hilton, and Younggren comment that the “[o]ver-blown fear of lawsuits from family members and of criminal liability for encouraging sexual activity that may be interpreted as abuse, influence[] administrator’s judgment” (p. 919).
- 5.
Casta-Kaufteil notes that guiding nursing home policies are essential to ensure that staff and families do not disregard the residents’ sexual preferences.
- 6.
Wilkins phrases this requirement as whether “the resident [is] aware of potential physical and emotional harm” (p. 719).
- 7.
Spece, Hilton and Younggren state, “[A] competent resident’s prior directive, if any, that intimacy should not continue should she be incompetent, shall not be disregarded” (p. 931).
- 8.
Boni-Saenz notes that individuals can also choose proxy directives, in which they specify a surrogate to make medical decisions for them should they become incompetent, and hybrid directives “which designate a proxy decisionmaker but also provide written guidance about the principal’s beliefs in varying levels of mandatory language” (p. 12).
- 9.
See Evelyn M. Tenenbaum, To Be or To Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex, and Adultery, 42 Ind. L. Rev. 675, 714–719 (2009) for a more in-depth discussion of critical values relating to sexual activity.
- 10.
Wilkins suggests “a committee approach [that] can be utilized where residents, the nursing home, and family members can convene to advocate for residents’ autonomy, dignity, and right to sexual expression while working to minimize harm.”
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A special thanks to my fantastic, creative, and reliable research assistant Emily Gray.
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Tenenbaum, E.M. (2021). Assessing Consent to Intimate Sexual Relations Among Nursing Home Residents with Dementia. In: Dubljević, V., Bottenberg, F. (eds) Living with Dementia. Advances in Neuroethics. Springer, Cham. https://doi.org/10.1007/978-3-030-62073-8_8
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