Who decides with whom we are allowed to have sex? Generally, consenting adults are considered to have the ability to make decisions regarding sexual activity and are allowed to pursue a sexual relationship with whomever they choose, assuming appropriate criteria for consent are met. Indeed, consent is crucial in any decision regarding sexual activity because, by definition, sexual abuse occurs when sexual activity is non-consensual. It is assumed, though, that we have the freedom to do what we please with our bodies and to enjoy reasonable protection against harm in all matters of our life, ranging from what happens in our bedroom (i.e. sexual decisions) to what happens in the hospital (i.e. decisions regarding acceptance or withdrawal of medical treatments).
Decisions, however, aren’t made in a vacuum. The context in which a decision is made is important in determining both the options and the stakeholders in the decision-making process. For example, older adults who reside in nursing homes have to abide by applicable policies and practices of the nursing home when making decisions. For residents with dementia who may have impaired decision-making, the nursing home often takes a more active role in decision-making, arbitrating between two potentially competing interests: providing opportunities for residents to freely and privately associate and protecting residents from harm.
Sexual expression can be an important part of quality of life for older adults. Despite myths to the contrary, there is no age at which sexuality suddenly disappears. Further, a diagnosis of dementia for an older adult does not automatically indicate an end of sexual interest. In fact, sexual intimacy may be an important avenue to combat loneliness and fear as dementia progresses. In the nursing home, however, the sexual expression of a resident with dementia can be complicated, particularly because it can be difficult to assess if an individual with dementia has the ability to consent to sexual activity.
The challenge of decision-making in such situations was recently highlighted in the case of Donna Lou Rayhons. According to an article in The New York Times, Mrs. Rayhons had dementia and was living in a nursing home while her husband lived in the community, visiting her frequently. There was concern from a daughter of Mrs. Rayhons from a previous marriage that there was inappropriate sexual contact between the married couple. A doctor in the nursing home reportedly evaluated Mrs. Rayhons and felt that she did not have the ability to consent to any sexual activity, a determination that was communicated with Mr. Rayhons. Despite this recommendation, Mr. Rayhons reportedly had sexual relations with his wife, which led to charges against him of felonious sexual abuse.
The concern here is that if an individual with dementia is unable to demonstrate an ability to consent, there is an increased risk for sexual abuse. In medical situations, clinicians are frequently asked to assess whether an individual has the ability to make certain decisions such as whether to have an operation or to leave the hospital against medical advice. These determinations are typically made with formal assessments of capacity in which a clinician examines an individual’s ability to demonstrate a choice, understand pertinent information, reason about the various options, and appreciate the consequences of the decision.
In nursing homes, such formal capacity assessments are usually undertaken when there is concern about impairment in a resident’s decision-making regarding sexual activity. This appears to have been the case for Mrs. Rayhons. There are several issues, however, when applying this framework to sexual decision-making. First, there are no consensus guidelines for determining capacity to consent to sexual activity. Second, decisions about with whom to have a sexual relationship are inherently different from medical decisions. For instance, medical decisions are generally made with attention to logic and reasoning whereas sexual decisions sometimes proceed with little attention to pros and cons or future implications.
Formal assessment of capacity may be a useful tool in the initial evaluation of residents for the ability to consent to sexual activity in the nursing home. These assessments, however, should not necessarily drive the definitive ruling about whether a resident can engage in sexual activity as this appears to be a medicalization of an essentially personal decision. To support freedom in decision-making for residents with dementia, nursing homes can adopt a more person-centered approach by which the nursing home works to advocate for the personal needs of the resident as opposed to gate-keeping resident’s decisions. From this perspective, every attempt is made to prevent foreseeable and unreasonable harm but there is acknowledgement that decisions regarding sexuality carry inherent risk and that older residents with dementia should not necessarily be held to a higher standard of decision-making than younger individuals.
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