Sunday, October 1, 2017

The Black, White & Gray of Consent to Sexual Relations in Long-Term Care

Eagle Crest, a 126-bed skilled nursing facility in California, once known as Carmichael Care & Rehabilitation Center, is "voluntarily" closing its doors. A major reason for parent corporation Genesis HealthCare's  decision appears to be an incident of sexual contact between two aged residents at the facility in February, 2017.  Not a violent contact and apparently not one involving physical or mental injury.  But clothing was removed and fluids were later documented.  Now residents are being transferred and more than 70 employees will reportedly be laid off. 

As one of the two residents had Alzheimer's disease, and thereby was deemed unable to consent to sexual relations, the facility "self-reported" the contact as possible abuse to appropriate state authorities.   A criminal investigation found no grounds for prosecution.  A California Department of Public Health report, however, made the recommendation to federal authorities last summer to "drop the facility from its medicare provider rolls, a drastic action that strips a nursing home of its critical government funding," according to news reports.  The actual closure action was made voluntarily by Genesis.

Those are some of the black and white facts reported by the Sacramento Bee, which has published a series of news articles tracking this facility for many months. The "gray" facts are more complicated, and raise questions at the heart of any LTC operation:

  • Is it possible the state overreacted and misconstrued a "quasi-consensual" contact between a "lonely man and a confused woman"? 
  • How far must a LTC provider go to prevent intimate contact between residents?
  • After one report of sexual contact between residents, does that mean one or both residents must be treated as a risk that requires special procedures to prevent -- or at least reduce the likelihood -- of them being involved in future sexual contact?
  • How does a long-term care facility achieve a restraint-free environment -- a federally sanctioned goal -- while also charged with protecting ambulatory residents from intimate contact?  
  • Is it possible for residents (and their family members or other health care agents?) to release a facility from liability arising from "un-consented" sexual relations among residents?

The Sacramento Bee has published a series of news articles that show a broader history of problems for the particular facility in question (including being on the "special focus" facility list for troubled facilities for many months before the sexual contact report).  

The series shows just how difficult it is for prospective residents and family members to evaluate risk and quality of care in a facility in advance of admission.  See:

Steve Moran, who writes for the Senior Housing Forum, responds with his evaluation of the February incident of sexual rcontact between two residents, in Resident Sexuality, Abuse, Consent and the Law.  He outlines his recommendations for providers:  

The reality is that senior living providers need to be very diligent about this issue. I am not an attorney and this is not legal advice, but it seems that it might look like this:

  1. It is generally better to err on the side of caution.

  2. On the flipside, residents still have the right to be sexually active if that is their mutual desire.

  3. While hard to talk to families about their parents or grandparents sexual activities, families need to be part of the discussion (when families have the legal right to be involved).

  4. Frank conversations need to happen with the appropriate people.

  5. Document like crazy whatever you do and why you are doing it.

  6. Depending on the level of care, state regulations, and your relationship with the your licensing folks, a proactive conversation could save some pain down the road.  

Moran concludes:  "The ultimate problem is that these things are often not very black and white."

http://lawprofessors.typepad.com/elder_law/2017/10/the-black-white-gray-of-consent-to-sexual-relations-in-long-term-care.html

Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink

Comments

Post a comment