Other Consent Issues in Residential Care

There are many other complex areas of a person’s life where consent issues may arise when living in residential care. Several of these areas are discussed more generally in the Chapter 4 Legal Issues When Living in Residential Care. However, one area of consent raises special considerations; this relates to intimacy, specifically to consent for sexual relations. To a large extent, the literature on sex and people residing in care facilities has focussed on the harmful aspects, such as unwanted contact, “sexual aggression” and “sexual abuse”. However, there have been efforts over the years to separate out harmful expressions from desired and perceived beneficial ones.

Intimacy and Sexual Relations

The issue of intimacy and sex comes up in many different ways in residential care. This includes having a private place to be intimate; expressions of intimacy between residents who may or may not be partners; people with different “levels” of capacity; whether a husband has a “right” to continue to have sexual relations with his wife who has dementia; and whether a woman with dementia who erroneously believes this person is her spouse is “consenting”. These are sometimes characterized as consent issues, as privacy and quality of life issues, and other times as risk management matters.

British Columbia legislation does not refer to consent for sexual activity and there is no test to determine whether a person is able to consent to sexual activity. It has been suggested that if a test were to exist it would likely be similar to the common law test of capability of consenting to any activity (most often to health care). That test is whether or not the person has the capacity to understand the “nature and consequences” of their decision, similar to the criminal law test of capability to give consent to sexual activity.

Since there is no legislated or common law test with regards to sexual consent capability, it follows that there is no law that expressly provides for substitute decision-making in this area.

Substitute decision-making for sex?

Substitute decision-making in this context means non-interference. The decision-maker recognizes, accepts and “allows” the parties (one or both of whom may be cognitively impaired) may act on their desires if they wish and as they wish. This would occur where there are indications from both parties that touching or other intimacy is desired.

At present, substitute decision-making in this area does occur in residential care. However it more often involves family saying “no to sex” or “no” to other forms of intimacy based on their personal views about sex or other intimacy outside of marriage or intimacy generally “at our mother’s age”. In other instances, it is based on their interpretation of the parent’s earlier life actions and values as a person without dementia. Family may expect staff to actively monitor and stop or redirect any relationships. The parties may be separated to different floors or even moved to a different facility.

It has been suggested that using a high threshold of understanding the “nature and consequences” of their decision, for all types of intimacy in residential care would effectively shut out these types of personal relations and decisions. Instead, it is important to look at the particular type of activity, and whether there appear to be harmful effects for this individual. The area is further complicated by the fact that the Residential Care Regulations states “consenting sexual activity’ between residents is not considered “sexual abuse “, but does not indicate who can “consent” or what consent looks like in this context.. Section 271 of the Criminal Code of Canada defines “Sexual assault”. A person may be convicted if it can be proven that the other person had not given consent. Section 273.1 of the Code makes clear that reliance on the fact that the other person is not objecting is insufficient to avoid being charged and convicted if it is determined that “the complainant [was] incapable of consenting to the activity”. According to section 273.2 the person must take “reasonable steps…to ascertain that the complainant was consenting.”

The courts have repeatedly stated that whether or not a complainant had sexual consent capability depends on the facts of each situation. In R. v. R. (R.), 2001 CANLII 3091, the Ontario Court of Appeal, specifically noted “...where one of the participants has demonstrable mental limitations, the threshold of responsibility escalates exponentially.” Unfortunately this does not help our understanding very much where both persons in residential care facilities have “demonstrable mental limitations”.

What Constitutes Consent in the Context of Intimacy and Sex?

In R. v. J.A. , the Supreme Court of Canada considered whether the Criminal Code of Canada framed consent as requiring a conscious, operating mind throughout sexual activity and whether a person who subsequently did not have an operational mind at the point of sex, could consent in advance.

The court decided the Criminal Code makes it clear that an individual must be conscious throughout the sexual activity in order to provide the consent. Consent to sex in the case was described in the context of ensuring that women and men are not the victims of sexual exploitation and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.

The Court emphasized that jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act. The jurisprudence also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question.

Chapter Resources

• BC Law Institute (2013). Report on Common Law Tests of Capacity. Online: www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf

• Public Guardian & Trustee. (2005). Consent to health care Online : www.trustee.bc.ca/pdfs/STA/Consent_Health_Care_March_2005.pdf

• Ministry of Health. (July 2011). Health Care Providers' Guide to Consent to Health Care

• Restrictions on the Authority of a Temporary Substitute Decision Maker

• Ministry of Health. (2013). my voice: expressing my wishes for future health care treatment. Advance care planning guide. Online: http://www.health.gov.bc.ca/library/publications/year/2013/MyVoice-AdvanceCarePlanningGuide.pdf

• Ministry of Health. (2011). A review of the use of antipsychotic drugs in British Columbia’s residential care facilities. Online: www.health.gov.bc.ca/library/publications/year/2011/use-of-antipsychotic-drugs.pdf

• Ministry of Health. (2012).Best practice guideline for accommodating and managing behavioural and psychological symptoms of dementia in residential care- a person-centered interdisciplinary approach. Online: www.health.gov.bc.ca/library/publications/year/2012/bpsd-guideline.pdf

• Vancouver Coastal Health. (2009). “Supporting sexual health and intimacy in care facilities: guidelines for supporting adults living in long-term care facilities and group homes in British Columbia, Canada,” Online: www.sfu.ca/uploads/page/04/FacilitiesLicensing_SupportingSexualHealthandIntimacyinCareFacilities2.pdf.

Proposes guidelines aimed to help administrators and clinical leaders develop their own guidelines to support healthy and safe sexual expression for adults living in care facilities.

• Alzheimer Knowledge Exchange. “Intimacy, sexuality and sexual behaviour in dementia. How to develop practice guidelines and policy for long term care facilities. “Online: http://www.akeresourcecentre.org/files/Sexuality/Intimacy,%20Sexuality%20and%20Sexual%20Behaviour%20in%20Dementia.pdf

• Supporting Sexual Health and Intimacy in Care Facilities- A pocket guide. May 2013. Spinal Cord Injury Organization of BC. Online: www.sfu.ca/uploads/page/04/SexualHealthIntimacyPocketGuide.pdf

General Reading (Please note, although these resources are useful for general discussions, they are based outside of the British Columbia legal context)

• Attorney General Ontario. (2005) Guidelines to conducting capacity assessments. Online: www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-06/guide-0505.pdf

Appendix: Examples of Financial/leagal and Personal Care Decisions in Residential Care

Examples

Financial / legal (property) decisions which specifically relate to residents of long-term care facilities

* contracting with the long-term care facility for payment of the accommodation fees and fees for other services,

• the management of the resident's trust account, if any, at the facility, and

• the management of the "comfort allowance" or other pocket money.

Personal Care decisions which specifically relate to residents of long-term care facilities

• the decision for admission to a facility,

• decisions about medical treatment and the resident's care plan,

• decisions about personal assistance services,

• all the basic decisions about diet, clothing, and hygiene, and

• decisions about the use and application of safety devices and physical restraints.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.