Sexual Expression and Intimacy: How to Develop a Strong Policy

The surveyor guidance in F607 (Develop/Implement Abuse/Neglect, etc. Policies) in Appendix PP of the State Operations Manual requires nursing homes to have and implement written policies and procedures that support “the resident’s right to establish a relationship with another individual, which may include the development of or the presence of an ongoing sexually intimate relationship.”

Given this directive, providers should consider developing a resident-centered policy for the management of resident sexual activity, suggests Gayle Doll, PhD, MS, BS, director of the Center on Aging at Kansas State University in Manhattan, KS, and author of the book Sexuality in Long-Term Care: Understanding and Supporting the Needs of Older Adults.

Policies should address multiple factors

“A facility’s sexual expression/intimacy policy should address multiple factors, including state requirements, resident rights, privacy expectations, and the process for determining the capacity to consent for residents with cognitive impairments, such as dementia. It’s also a good idea to address education for residents, families, and staff,” says Doll. “There are some examples out there. The Hebrew Home at Riverdale in Riverdale, NY, is the classic example because that facility has had a sexual expression/intimacy policy for more than 20 years.”

Note: Providers currently have an opportunity to see the difference between the Hebrew Home at Riverdale’s 2013 policy and procedure, which are available via the National Long-term Care Ombudsman Resource Center, and its updated and streamlined two-page 2017 update, which is available via the Innovations page on its own website.

Many residents remain able to make their own decisions about sexual relationships

If a resident is able to make their own decisions and they haven’t been judged legally to be unable to make decisions, then the facility policy should treat them no differently than adults living in an apartment complex or living in a dormitory, suggests Doll.

“They are privileged to be able to make their own decisions regarding sexual expression and intimacy. The staff’s responsibility is to help make that as safe as possible and to educate the resident in the risks that are involved in having that activity—very similar to the way that the team explains the risks involved in eating an inappropriate diet if the resident is diabetic.”

Consent assessment tools lack consensus

However, the policy must address the capacity to consent for residents with cognitive impairments. The Centers for Medicare & Medicaid Services (CMS) leaves the assessment vehicle up to facilities. The guidance to surveyors in F600 (Free From Abuse and Neglect) in Appendix PP states: “CMS is not requiring facilities to adopt a specific approach in determining a resident’s capacity to consent.”

“An early assessment tool developed in 1990 by Peter A. Lichtenberg, PhD, ABPP, was quite strict about the elements that a resident must meet to demonstrate the ability to consent,” notes Doll. “In recent years, there has been quite a bit of additional work about what this assessment should look like. However, not all of the tools are in agreement.” Note: Lichtenberg updated his tool in 2014. See “Sexuality and Physical Intimacy in Long Term Care: Sexuality, Long-term Care, Capacity Assessment” (Occup Ther Health Care, January 2014, 28(1): 42–50).

It can be difficult to determine capacity, agrees Eran Metzger, MD, the director of psychiatry at Hebrew SeniorLife in Boston, MA; an assistant professor of psychiatry at Harvard Medical School; and author of “Ethics and Intimate Sexual Activity in Long-Term Care” in the July 2017 issue of American Medical Association Journal of Ethics.

“It’s worth noting that while there are now very clear guidelines for clinicians on how to assess capacity to make medical decisions, for example, whether to accept or decline medical procedures, there still is relatively little written on how physicians should approach the question of someone having capacity to consent to sexually intimate behavior,” says Metzger.

“Clinicians who don’t have experience in this area will need to do some background reading. Even then, some of the cases may be fairly clear, but that is not always the case in terms of someone’s capacity.”

The question of what kind of assessment should take place also is hard to answer because of the many different possible scenarios that can arise in nursing homes, points out Metzger. If facilities designate an interdisciplinary team member as a “sexuality consultant” and provide them with the time and resources for education and training, this sexuality consultant should be able to guide staff regarding “what kind of assessment needs to take place and how the organization needs to respond,” he adds.

When residents cannot speak

Gray areas include how to assess residents with dementia who cannot speak, says Doll. “If a resident can’t say ‘yes’ or ‘no,’ does that mean they are no longer privileged to be able to express themselves sexually?

Recent incidents regarding dementia and sexual activity in nursing homes have made it clear that nonverbal residents can express to staff when they don’t like something. Therefore, if a resident is unable to consent but clearly shows they enjoyed a sexual activity, is that an expression of consent?”

The Hebrew Home at Riverdale deals with this by assessing for distress, says Mojdeh Rutigliano, MSN, RN, DNS-CT, RAC-CT, C-NE, vice president of nursing services. “Staff can assess for a resident’s distress even when they don’t have the capacity to make decisions regarding their finances or healthcare. Nine times out of 10, staff can tell whether a resident is content and freely engaging in sexual expression.”

Lack of distress equals consent

If a resident with cognitive impairments is obviously content and showing no signs of distress, that’s a consent to engage, says Rutigliano. “If staff assess that there is any form of distress, then the facility would need to have a formal capacity assessment. However, distress is extremely rare in our experience. When residents engage in physical touching or closeness, it almost always decreases agitation.”

When staff identify questions of capacity, that is the time to bring in the clinician to do a formal capacity assessment, agrees Metzger. “That clinician could be a physician, advance practice provider, or psychologist.”

In addition, the policy should have a mechanism for engaging the resident’s healthcare proxy if they don’t have capacity, says Rutigliano. “If a resident doesn’t have capacity, it’s important to involve their proxy and have a transparent conversation to allow for collaboration.”

Make your sexual expression policy available

Providers may want to make their sexual expression/intimacy policy available to potential residents and families, adds Doll. “The Hebrew Home at Riverdale advertises its sexual expression/intimacy policy on its website,” she notes.

“Consequently, families understand that their parent’s need for sexual expression will be honored at that nursing home. If they don’t want that parent to be engaged in any sexual activity, even just holding hands, then families wouldn’t send them there,” says Doll. “Allowing people to know from the outset that a home has a sexual expression/intimacy policy helps ensure they are open to that idea no matter whether their mother has dementia or not.”

Caralyn Davis

Caralyn Davis is a freelance writer specializing in the post-acute care sector. Email her at: caralynd@outlook.com.