Brian Herd

Brian Herd

Guest Blogger at See Full Details
Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care.
Brian Herd

Our ageing population presents many challenges and one that is particularly difficult to navigate is the impact of incapacity on relationships between older people and between older people and their families.  It presents unique challenges for aged care providers especially when it involves sex and questions of consent.

The issue was aired in a court decision from America in December last year*. The US Department of Health and Human Services had imposed a fine of US$83,800.00 on the owners of an aged care facility because, in the Department’s view, the facility had “inadequately addressed sexual interactions between three cognitively impaired residents”. The Department concluded that the facility’s failure to act had put the residents in “immediate jeopardy“, meaning the facility’s actions or inactions “…caused, or is likely to cause, serious injury, harm, impairment or death of a resident”.

The relevant facts were:

  • There were 3 residents involved, two men and one woman
  • Each had fairly advanced dementia and suffered from “behavioural disturbances” or “inappropriate behaviour
  • One of the men performed various sexual acts on the other man and also on the woman
  • There was no evidence that there was any objection from the other man or the woman
  • Several staff witnessed the events but did not seek to intervene except to record it in their notes
  • The facility’s policy was to allow residents to have sexual interactions and not to intervene or report it unless “a participant showed outward signs of non-consent

The facility appealed against the finding of “immediate jeopardy” and the penalty. The appeal court dismissed the appeal and, in doing so, appeared to decide that:

  • Their policy of only intervening if there were outward signs of non-consent was insufficient to determine consent particularly where there was cognitive impairment
  • The facility had taken inadequate measures to determine if the acts were consensual
  • The non-intervention policy was “misguided” and left the residents at risk

Curiously, there was no discussion about whether the conduct caused, or was likely to cause, harm, impairment or death to the participants as required by the definition of “immediate jeopardy”

In any event, it has some salutary lessons and insights for us:

  • In Australia, the first law of capacity is that a person is presumed capable of consenting to anything unless there is evidence to the contrary. It is not clear in the court case above whether this is the law of America too.
  • The case did not decide that persons with a diagnosis of dementia are not capable of consenting to sexual relations
  • What the case seemed to focus on was the failure to follow an appropriate process to determine if the participants were capable of consenting.

It also gives rise to more conundrums which stretch beyond the law and into the morality space:

  • What if the facility had undertaken a proper process to assess the residents’ capacity to consent to sexual relations and the upshot of that was that they were capable?
  • What if opinion was they were not capable?

These quasi legal/moral/care issues are complex and little credence is given to the difficulties aged care providers and their staff have to face in addressing this sensitive issue. The task of trying to balance the right of the resident to decide what to do themselves and the provider’s duty of care  is often unimaginably difficult and one for which there is often no obvious right or wrong. And, as if it couldn’t get any harder, they also have to manage the demands and expectations of the resident’s family.

There is no doubt that human touch is an essential element of happiness for our human condition particularly to ward off loneliness and depression. Most touch in aged care is clinical, it is often not affectionate. Indeed, affection in aged care, particularly for staff comes with a fear. It can not only be misinterpreted, it can be dangerous because, for some aged care scrutineers who are, perhaps not in touch, it is no less than an assault.

It is a sad day when aged care becomes an affection free zone. If I am ever a resident of a facility I would definitely want the maximum touch possible (and legal).

*Neighbors Rehabilitation Center v US Department of Health and Human Services  -7 December 2018 US Court of Appeals for the Seventh Circuit

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