By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Sexual relationships in long-term care facilities or nursing homes are not uncommon these days. But the long-term care industry is still grappling with the issue and the question of whether some residents are able to give consent. In some cases, these aging lovers have raised logistical and legal issues for their families, caretakers and the institutions where they live. Complicating the issues are state regulations which punish the health facility for allowing “sexual abuse” of one resident by another and facility policies which prohibit sexual contact between residents.
More Freedom For Residents.
Many nursing homes have already loosened daily regimens for patients, giving them more say in when and what they eat and for some, the next step seems to be the option of having sex. “Sex falls right smack dab in the middle of who we are as people,” said Marguerite McLaughlin, senior director of quality improvement for the American Health Care Association, the nation’s largest trade association for nursing homes.
Some nursing homes such as The Hebrew Home have organized happy hours, senior proms and even a dating service called G-Date.
More Freedom, More Concerns.
The idea of more freedom and the option for sex among nursing home residents, also brings more concern. Are some residents able to give consent for sex, especially those with dementia? This topic already came up in court in 2014. Henry Rayhons’ wife lived in a nursing home. The staff there told Rayhons that because of her dementia, his wife was no longer capable of consenting to sex. He had been charged with sexual assault for allegedly having sex with her after that. He was later found not guilty. Click here to read more on this case.
Many nursing homes do not have any guidelines in place for cases such as this one. The Hebrew Home came up with a sexual expression policy back in 1995 after a nurse walked in on two residents having sex. Daniel Reingold, the president and chief executive, stated that the policy is not only intended to encourage intimacy among residents who want it, but also protects against unwanted sexual advances and sets guidelines for staff members. Reingold believes that patients with alzheimers and dementia are fully capable of giving consent and the policy reflects that stating that such patients can give consent for sexual relationships under certain circumstances.
The issue of sexual relationships among nursing home residents is not going to go away and will most likely remain controversial. More and more facilities and care takers are adopting adequate policies for residents and encouraging intimacy and companionship. As Eileen Dunnion, a registered nurse said, “You get old, you get cold!”
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The Health Law Firm and its attorneys represent skilled nursing facilities (SNFs), assisted living facilities (ALFs), home health agencies (HHAs), and their employees in a number of different matters including license defense, representation in civil litigation, representation in administrative hearings, contract preparation and litigation, defense of malpractice claims, licensing and regulatory matters, civil monetary penalty actions, defense of false claims act cases, answering subpoenas and civil investigative demands (CIDs) and routine legal advice.
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Hu, Winnie. “Too Old For Sex? Not At This Nursing Home.” The New York Times. (July 12, 2016). Web.
Jaffe, Ina. “Can a Person With Dementia Consent to Sex?” NPR. (April 11, 2015). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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