The Need for More Specific Legislation in Sexual Consent Capacity Assessments for Nursing Home Residents

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Notes

Sarah Jane Growe, Interest in Sex Doesn't End with Retirement, Toronto Star, Jan. 19, 2004.

Id.

Id.

Kenney F. Hegland & Robert B. Fleming, Alive and Kicking: Legal Advice for Boomers 109-11 (2007) (reporting that, in a study of healthy people between ages 80 to 102, 88% of men and 72% of women have sexual fantasies; and 66% of the men and 38% of the women still continue to have sexual intercourse).

Ramzi R. Hajjar & Hosam K. Kamel, Sexuality in the Nursing Home, Part 1: Attitudes and Barriers to Sexual Expression, 4 J. Am. Med. Dir. Ass'n 152, 153 (2003) (stating that 20% of people older than 85 years of age live in nursing homes, and currently more than 2 million people live in roughly 20,000 facilities in America alone). This Commentary uses the term “facility” to refer to all in-residence facilities, including nursing homes and long-term care facilities.

See generally Fla. Stat. § 400.022 (2009); 210 Ill. Comp. Stat. 45/2-101-113 (2009) (Illinois’ Nursing Home Care Act enumerates the individual rights of residents).

Fla. Stat. § 400.022 (2009); 210 Ill. Comp. Stat. 45/2-101-113 (2009). Both statutes provide the express caveat that a patient or resident has the ability to refuse treatment and make decisions pertaining to medical care, so long as he or she is deemed competent to do.

Martin Lyden, Assessment of Sexual Consent Capacity, 25 Sexuality & Disability 3, 9 (2007).

Fla. Stat. § 400.022 (2009).

Id.

See Bigley v. Alaska Psychiatric Inst., 208 P.3d 168 (Alaska 2009); Rains v. Belshe, 38 Cal. Rptr. 2d 185 (Cal. Ct. App. 1995) (upholding California's Health and Safety Code, and permitting a treating physician to proceed with medical care as approved by an interdisciplinary review team; statute only applied to those found unable to consent and without a legal surrogate to act as a proxy for consent).

Lyden, supra note 8, at 16-17.

Id. at 3-20.

210 Ill. Comp. Stat. 45/2-101-113 (2009).

Id.

Sharon R. Kaufman & Gay Becker, Frailty, Risk, and Choice: Cultural Disclosure and the Question of Responsibility in Older Adults’ Decision-Making and the Law 48, 51-52 (Michael Smyer et al. eds., 1996).

Belinky v. Drake Ctr., Inc., 690 N.E.2d 1302 (Ohio Ct. App. 1996).

Kristine S. Knaplund, The Right to Privacy and America's Aging Population, 86 Denv. U.L. Rev. 439, 443 (2009) (showing that despite the Nursing Home Patients’ Bill of Rights, caregivers often discourage sex and apply restrictive policies to prevent activities the facility deems dangerous to the residents or which may leave it open to liability).

Am. Bar Ass'n Comm'n L. & Aging & Am. Psychological Ass'n, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers 62 (2005) (providing a non-exhaustive list of capacity assessments, tailored specifically for individual purposes).

Id.

Glynis H. Murphy & Ali O'Callaghan, Capacity of Adults with Intellectual Disabilities to Consent to Sexual Relationships, 34 Psych. Med. 1347, 1355 (2004).

Id.

Id.

Lyden, supra note 8, at 17.

Martin Lyden, Capacity Issues Related to the Health Care Proxy , 44 Mental Retardation 272, 272 (2006).

Evelyn M. Tenenbaum, To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex, and Adultery, 42 Ind. L. Rev. 675 (2009).

Id. at 675-76.

Lawrence v. Texas, 539 U.S. 558, 561 (2003) (excluding situations involving minors, those at risk for exploitation and coercion, those who face injury, and occasions where consent may be an issue from the privacy from governmental intrusion; and allowing the government to pass laws to protect against abuse, while protecting the privacy of consenting adults in their own homes).

Id.

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis added).

Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).

Id.

Bowers v. Hardwick, 478 U.S. 186, 195-96 (1986).

Lawrence, 539 U.S. at 560 (citing Justice Stevens’ dissent in Bowers, 478 U.S. at 216) (“[I]ndividual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by the due process clause … .” The Court further said “[that] analysis … should have been controlling in Bowers and should control here.”).

Rains, 38 Cal. Rptr. 2d at 185.

Mitchell v. Baltimore Sun Co., 883 A.2d 1008, 1016 (Md. 2005).

State v. Larson, No. 51169-6-I, 2003 Wash. App. Lexis 2752, at *2 (Wash. Ct. App. Nov. 24, 2003) (“A nursing home is the domicile for its vulnerable residents, and the purpose of the home is to protect them.”).

Hajjar & Kamel, supra note 5, at 154 (explaining various methods employed by staff to prevent and deter sexual expression).

Id.

42 U.S.C. § 1396r(b)(3) (2006).

Id.; see also 42 C.F.R. § 483.20 (2009).

Id.

42 C.F.R. § 483.1 (2009).

Peter A. Lichtenberg, Handbook of Assessment in Clinical Gerontology 139-49 (1999).

Id.

Id. at 335.

Id.

Thomas Grisso & Paul S. Appelbaum, Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals 18-19 (1998).

Lichtenberg, supra note 44, at 331-44.

Id . at 336.

Id.

Grisso & Appelbaum, supra note 48, at 22.

Lyden, supra note 8, at 9.

Knaplund, supra note 18, at 443.

Ira Rosofsky, Sex, Drugs, and Rocking Chairs, L.A. Times, Aug. 3, 2009, at A19, available at http://pqasb.pqarchiver.com/latimes/access/1814124591.html?FMT=ABS&FMTS=ABS:FT&type=current&date=Aug+3%2C+2009&author=Ira+Rosofsky&pub=Los+Angeles+Times&edition=&startpage=A.19&desc=Sex%2C+drugs+and+rocking+chairs (last visited Mar. 21, 2010) (“Hand-holding, kissing, and petting probably would go further than a little medication at 10 o'clock at night.”).

Belinky v. Drake Ctr., Inc., 690 N.E.2d 1302 (Ohio Ct. App. 1996); see also State v. Johnson, 758 N.W.2d 224 (Wis. Ct. App. 2008).

Belinky, 690 N.E.2d at 1302.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Johnson, 758 N.W.2d at 224.

Id.

Id.

Id.

Id.

Belinky, 690 N.E.2d at 1302.

Id.

Johnson, 758 N.W.2d at 224.

Belinky, 690 N.E.2d at 1302.

Am. Bar Ass'n, supra note 19, at 59.

Id. at 66. The last category includes common tests such as Blessed Information-Memory-Concentration Test (BIMC), the Mental Status Questionnaire (MSQ), the Mini Mental State Examination (MMSE), the Seven Minute Screen (7MS), and the Short Portable Mental Status Questionnaire (SPMSQ)—all of which are generalized and used to determine whether more testing is needed. These are not typically intended to be used alone to decide a patient's mental capacity.

Id.

Id.

Timothy A. Salthouse, Commentary: A Cognitive Psychologist's Perspective on the Assessment of Cognitive Competence, in Older Adults’ Decision-Making and the Law 29, 35 (Michael Smyer et al. eds., 1996).

Id.

Id. at 18.

Kathleen S. Mayers & Dennis McBride, Sexuality Training for Caretakers of Geriatric Residents in Long Term Care Facilities, 16 Sexuality & Disability 227, 228 (1998).

Grisso & Appelbaum, supra note 48, at 20-21.

Id. at 18-19.

Id. at 21-30.

Id. at 21.

Id. at 23.

Id.

Id. at 23-26.

Id. at 24-26.

Id.

Id.

Id.

Id.

Id.

Salthouse, supra note 79, at 29-35.

Id.

Id.

Id.

Alan Wertheimer, Consent to Sexual Relations (2003).

Id. at 57.

Id.

Id. at 58-59.

Id. at 57.

Id.

Students Against Destructive Decisions (SADD), National Study Links Teens’ “Sense of Self” to Alcohol, Drug Use and Sex, Mar. 2, 2004, available at http://www.sadd.org/teenstoday/nationalstudy.htm (last visited Mar. 21, 2010) (reporting that the most common reasons why teenagers choose to have sex are “to strengthen the relationship and to have fun”).

Id.

Staff Report, Sex in Nursing Homes, The Kentucky Post, July 12, 2003, available at http://www.cincinnati.com/text/kypost/2003/07/12/sex071203.html (last visited Mar. 21, 2010).

Id.

Rosofsky, supra note 55.

Hajjar & Kamel, supra note 5.

Wertheimer, supra note 100.

Hajjar & Kamel, supra note 5, at 152.

Id.

Am. Bar Ass'n, supra note 19.

Wertheimer, supra note 100.

Murphy & O'Callaghan, supra note 21.

Am. Bar Ass'n, supra note 19, at 6.

See Leo J. Borrell, Too Much or Too Little Care, Closeness and Love: How to Establish Boundaries and Guidelines for Intimacy, Sexuality and Sexual Behavior in Assisted Living and Nursing Home Environments (2005), available at http://www.seniorpsychiatry.com/articles/toomuchtoolittle.pdf (last visited Mar. 21, 2010); see also The Hebrew Home at Riverdale, available at http://www.hebrewhome.org/alzheimers.asp (last visited Mar. 21, 2010).

Borrell, supra note 119, at 2 (referring to a suggested guideline by Peter A. Lichtenberg in 1997).

Id. at 7 (“Many residents with lower SMMSE scores in fact, may have an awareness of the relationship, and give an account of the risks of the relationship. Therefore, it may be unreasonable to forbid the relationship on the basis of an SMMSE score alone.”); Murphy & O'Callaghan, supra note 21, at 66 (providing general information about the Mini-Mental State Examination).

Borrell, supra note 119, at 2; see also Joint Comm'n Resources Mission, Joint Comm'n on Accreditation of Healthcare Organizations 117 (2003) (explaining that a score lower than 20 often indicates dementia or cognitive decline, but also expressing some of the limitations of the MMSE).

Borrell, supra note 119, at 2, 7.

Id. at 2.

Id.

Id. at 7.

Id. at 2.

Id.

Id.

Id. at 7.

Id.

Id. at 2.

Id.

Id.

Grisso & Appelbaum, supra note 48, at 21-30.

Michael A. Kirtland & Catherine Anne Seal, Intimacy in the Elder Law Setting , 22 Probate & Property 34, 35 (2008).

Grisso & Appelbaum, supra note 48, at 18.

Borrell, supra note 119.

Id.

Id.

Id.

Id.

Id.

Lyden, supra note 8, at 10.

National Guardianship Association, Standards of Practice, Standard 10, § II (2007), available at http://www.guardianship.org/pdf/standards.pdf (last visited Mar. 21, 2010).

Lyden, supra note 8, at 11.

Id. at 12-15.

Id.

Id. at 15.

Id.

Id.

Wertheimer, supra note 100.

Id. at 103.

Id. at 130.

Id.

Id.

Id.

Id. at 130-39.

Id.

Id.

The Hebrew Home at Riverdale, supra note 119.

Id.

Id.; see also N.Y. Pub. Health Law § 2803-c(3)(a) (Consol. 2009) (“Every patient's civil and religious liberties, including the right to independent personal decisions and knowledge of available choices, shall not be infringed and the facility shall encourage and assist in the fullest possible exercise of these rights.”); id. § 2803-c(3)(b) (“A statement that should the patient be adjudicated incompetent and not be restored to legal capacity … the above rights and responsibilities shall be exercised by the appointed committee … .”).

N.Y. Pub. Health Law § 2803-c(3) (Consol. 2009).

Fla. Stat. § 400.022 (2009).

Id.

Hajjar & Kamel, supra note 5, at 154.

Fla. Stat. § 400.022 (2009).

Id.

Staff Report, supra note 108 (quoting an elderly man who wished to have sex with his wife: “My wife is paralyzed on one side and I have a bad back, so I would need somebody to put her in bed with me. But I wouldn't dare discuss it with the nursing home.”).

210 Ill. Comp. Stat. 45/2-101-113 (2009).

Id.

Id.

The Hebrew Home at Riverdale, supra note 119.

Am. Bar Ass'n, supra note 19, at 62.

42 U.S.C. § 1396r(b)(3) (2006).

See Fla. Stat. § 400.022; 210 Ill. Comp. Stat. 45/2-101-113.