(Implicit) Consent to Intimacy

Abstract

We discuss capacity of long-term care residents to consent to intimacy with their spouses/partners and policies to protect residents' rights. The policies provide: (1) competence is presumed; (2) consent can be through explicit verbal or written directives, or, in certain circumstances, by failure to object either verbally or physically; (3) if there is no directive and the facility doubts a resident's competency, it shall require a competency evaluation using a specified approach; (4) residents retain the right to revoke consent regardless of competency, and a prior directive that intimacy ceases if the resident becomes incompetent shall control; (5) residents should be encouraged to include specific instructions should they become incompetent and to appoint a surrogate decisionmaker; (7) unless it becomes obvious that the resident might lack the capacity to object orally or physically or the resident communicates a desire to revoke consent, the facility shall ensure the resident's privacy; (8) if it appears that the resident might lack capacity and is suffering harm, a surrogate or qualified employee can request the spouse/partner to confirm the resident has not verbally or physically refused intimacy; (9) if there is confirmation, a surrogate or qualified employee should bring the matter to court only if she determines that it is in the resident's best interests to cease intimacy, best interests being determined by considering the resident's past representations, other indications of her critical and experiential interests, and her physical and emotional wellbeing; and (10) the court should determine best interests using the same criteria. Persons in nursing homes, assisted living facilities, and care homes (hereafter "nursing homes") face various orthopedic, medical, and psychological challenges common in an aging population. Frequently, the psychological challenges 1 directly impact cognitive function often leading to a diagnosis of dementia. 2 Persons with dementia face numerous struggles as the disease progressively attacks their minds and often their bodies. Early stage dementia, evidenced by