LEGALLANDSCAPE

Sexual intimacy
and dementia

Abstract:

The article focuses onlegalissueconcerning sexual intimacy and

dementia in skillednursingfacilities (SNF) in the U.S. Topics
mentioned include the need for the SNF to deal with balancing the
residents' rights in anursinghome and their safety, an overview of
the State of Iowa v. Henry Rayhons sexual abuse case, and the
obligations ofnursingfacilities under federal and state law, such as
protection of residents, respect of resident rights and autonomy.

As the national and international media reported,

Henry Rayhons, a 78-year-old former state legislator, was charged with

sexually abusing his wife, who had dementia, while she was a resident at an
Iowa nursing home.

Although Henry Rayhons was exonerated, many skilled nursing facilities

(SNFs) are just beginning to grapple with concerns over sexuality and
dementia. The issue of balancing the rights of a resident in a nursing home
with his/her safety is at the heart of what SNFs must deal with.

The case against Henry Rayhons may be the first time that a husband was charged
and prosecuted with sexually abusing his wife while she was a resident living with
dementia in a nursing home. This case also illustrates the complexity of sexual
intimacy when one or both partners may have a cognitive impairment.

Can a person with dementia validly consent to being sexually

intimate with another?
Answer: It depends. In the State of Iowa v. Henry Rayhons case, the
nursing facility determined that Donna Rayhons lacked the capacity to
consent to sexual contact with her husband.

On May 15, 2014, during a care plan meeting, the facility informed
Rayhons that his wife did not have the cognitive ability to give consent
to any sexual activity, according to the official complaint.
The following week, a roommate of Donna Rayhons reported that she heard
noises indicating that the couple was engaging in sexual activity. A surveillance
video revealed Henry Rayhons depositing his wifes discarded undergarments as
he left her room the night in question. The facility contacted the local police and
Rayhons admitted to having sexual contact with his wife. He also acknowledged
that the facility advised him that his wife could not consent to sexual relations
because of her incapacity.

Nursing facilities have an obligation under both federal and state law to protect their
residents.

They also have an obligation to respect autonomy and resident rights. Unfortunately,
capacity is not an all-or-nothing proposition.

Residents with Alzheimers disease or other forms of dementia may have

intact decision-making capacity in the morning but lack that ability in the
evening, as is common with sun downing. Decision-making capacity often
waxes and wanes.
Many nursing facilities have not taken a holistic approach to this very real concern,
evidenced in part by the lack of staff education and a general lack of policies and
procedures covering sexual expression in the facility. The need for intimacy One
facility that has employed a Sexual Expression policy is the Hebrew Home at
Riverdale in New York.

According to Pat Bach, PsyD, a geriatric psychologist who was involved with
AMDAs survey, Only 25 to 30 percent of the facilities in the survey had formal
training in the area of intimacy and sexuality regarding older adults. Thirty
percent had no training at all. Likewise, 30 percent of the respondents in the
AMDA survey indicated the homes they worked in had no policies. Greater
educational focus on this area is also needed among geriatricians, as the majority
of respondents (65-75 percent) received little to no training in their geriatrics
fellowship programs, Bach adds. Thus, physicians (and other long-term care
providers) are not always well prepared to effectively address these issues.

According to Lindsey Neal, MD, a Certified Medical Director and AMDA member,
notes, Residents with dementia are still human beings with sexual feelings and
desires, and often as their dementia worsens, their sexual desires increase. These
scenarios are uncomfortable and facilities often err on the side of caution and
prohibit such encounters. Physicians and medical directors should stay involved,
be a part of the discussion, spend time with the resident and family, advocate for
the resident, consider a neuropsychiatric evaluation if necessary and document
their assessment.

Cognitive assessment - It is incumbent for facilities to determine the level of

cognitive functioning of residents contemplating sexual intimacy.
Regardless of the particular assessment utilized, two things are important to
remember:
(1)

Document the findings in the residents medical record and,

(2)

Understand that determinations of cognitive functioning and executive

decision-making are not static; decision-making capacity is often a
dynamic and fluid variable that is apt to change from time to time based
many factors.

The cognitive assessment and the level of activity determined to be

appropriate should be incorporated on the residents care plan and revised as
needed.
Apart from recognizing that every nursing facility needs to address the often
complex concerns illustrated by the Rayhons case, educating the staff and
creating appropriate policies may be the best first steps to adequately protect
residents while respecting their rights.