People with mental health conditions that impact their ability to make decisions cannot consent to sexual relations. To allow elderly residents with dementia to engage in intimate relations in a nursing home under the guise that it is “consensual,” and in some respects promote it as a policy, is inexcusable.
An Illinois appellate court has sided with the Centers for Medicare & Medicaid Services (CMS) on their decision to heavily fine an Illinois nursing home for a policy that allowed residents with dementia to engage in sexual relationships.
Generations at Neighbors in Byron, IL previously allowed residents with dementia or other cognitive difficulties to have intimate relations with fellow residents, provided that the interactions seemed consensual. CMS, citing this policy as an Immediate Jeopardy violation, fined the facility $83,000. Immediate Jeopardy citations are reserved for those “situations in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment or death to a resident.”
Generations at Neighbors then filed an appeal, saying that it was well within a resident’s rights to have sexual relations. The appellate court, however, ruled that the nursing home’s policy put residents in danger because many residents have an impaired ability to demonstrate non-consent, either cognitively or physically.
CMS’ own policy states: “Generally, sexual contact is nonconsensual if the resident either:
- Appears to want the contact to occur, but lacks the cognitive ability to consent; or
- Does not want the contact to occur.”
The bottom line is that nursing home residents with dementia are inherently unable to appropriately demonstrate consent. For a nursing home to abide by a policy that relies on staff members’ personal opinions as to whether or not residents want sexual contact is putting residents at serious risk for sexual abuse.
The policy goes on to say that while residents have the right to engage in consensual sexual relationships, anything that might hinder their ability to consent automatically disqualifies them from being allowed to have these relationships.
Nursing Home Staff Should Not Determine Capacity to Consent
Generations at Neighbors’ policy is even more troubling to us due to their staffing rating from CMS. Nursing Home Compare, the nursing home quality ratings site operated by CMS, has given the facility just 1 star. Generations was given one star in each of the 4 major areas examined: health inspections, fire safety inspections, quality of resident care, and most notably, staffing. CMS determined that Generations at Neighbors RNs and CNAs spend less time with residents than the Illinois AND national average.
Generations, and any other nursing home, that allows staff members to judge ability to consent to sexual relationships is putting residents at risk for immediate harm. Levin & Perconti, as one of the most established nursing home abuse and neglect law firms in the country, has found that many nursing homes follow this same, often unwritten, policy. With low staffing as the number one predictor of nursing home abuse and neglect, any facility that does not have enough staff to handle routine, everyday care should not also be put in the position of determining whether residents with dementia are cognitively and physically capable of consenting to sex. Simply put, those with dementia cannot consent to sex and it is not up to a nursing home to allow it or not allow it.
If someone you love has been abused or neglected in a nursing home, Levin & Perconti can help. For nearly 30 years our attorneys have successfully defended the rights of the elderly, especially those suffering from dementia whom have been harmed by a fellow nursing home resident or staff member. Our attorneys have recovered over half a billion dollars recovered for victims and their loved ones.
Let Levin & Perconti get justice for your loved one. Contact us now for a free consultation at 1-877-374-1417, in Chicago at 312-332-2872, or by completing our online case evaluation form.