A critical issue facing administrators and staff of long-term care homes is how to handle cases of sexual activity between residents who may lack the capacity to consent to such activity.
The Long-Term Care Homes Act (the “LTCHA”) places an obligation on homes to ensure the safety of residents, including the prevention of abuse, but also an obligation to ensure the residents’ right to privacy, including their right to sexual expression. As such, long-term care homes must strike a balance between protecting those in need of protection and allowing those who are lawfully capable to engage in sexual relationships. Achieving such a balance raises a number of key factors to be considered, such as:
- What does capacity to consent to sexual activity require?
- How should this capacity be determined?
- Who should determine it?
- When should someone be assessed for capacity to consent to sexual activity?
The ongoing tension between a right to sexual expression and a duty to prevent abuse is present across homes throughout Ontario.
Criminal law defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question” (section 273.1(1) of the Criminal Code of Canada). Further, the criminal law provides that there can be no consent to a sexual activity where any one of the following circumstances exists:
(a) The agreement is expressed by the words or conduct of a person other than the complainant;
(b) The complainant is incapable of consenting to the activity;
(c) The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or,
(e) The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
With the fluctuating nature of capacity and dementia, medical assessors must also look at when consent may be given. It does not matter if a person used to actively participate or if he or she is married to their partner. If he or she can no longer give a capable consent, the activity should not occur.
In Ontario, under Regulation 460/05 to the Substitute Decisions Act, a capacity assessor must be a member of one of the prescribed health professions and a member of that profession’s college. Often times it is a social worker.
An assessment cannot be done if the resident refuses unless there is a court order requiring the resident to participate. If the resident is found to be incapable, he or she could apply to the Consent and Capacity Board to review the finding.
With such a sensitive and prevalent issue, many homes are creating sexuality or intimacy policies to address some of these concerns. A policy can be a safeguard against staff preventing or intervening based on their own value system of sexual expression.
The competing obligations and duties of long-term care homes with respect to the sexuality of residents is further complicated by the fact that the law gives little direction or guidance in addressing these questions. While there is a legal presumption of capacity, there is little legal guidance in determining who is capable and who is incapable to consent to sexual activity. Regardless of the law’s vagueness, there is an expectation that long-term care homes are diligent with incapable residents.