Sexual Intimacy and Dementia: Fulfilling a Basic Need or Resident Abuse?

Not guilty. After about 13 hours of deliberation, an Iowa jury arrived at a not guilty verdict in the sexual abuse case involving a nursing home resident and her husband. 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.(Donna Rayhons was 79 at the time and has subsequently passed away.)

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? The 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 Henry 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 wife’s 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. He was charged and prosecuted for felony sexual abuse in the third degree. Although the jury found Rayhons not guilty, this troubling case raises a host of questions that all SNFs need to answer.

The consent conundrum

Clearly, 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 Alzheimer’s 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 sundowning. Decision-making capacity often waxes and wanes. And, a court may rule that a person lacks the ability to make medical decisions but is capable of handling financial matters, or vice versa. How then, can a facility know what the correct path is in a given situation?

As the Baby Boomer generation—the generation that lived through the sexual revolution of the ’60s—enters nursing facilities in greater numbers, SNF administrators must face the complex ethical and legal issues concerning resident sexuality. According to Bloomberg News, 67 percent of men between the ages of 65 and 74, and 39.5 percent of women in the same age group, had sex with another within 12 months prior to the survey. The combination of increasing numbers of sexually active older adults and the more than 5 million people in the United States that have Alzheimer’s disease suggests that the concerns are likely to continue to grow. Moreover, the number of people with Alzheimer’s disease—just one form of dementia—is expected to rise to over 7.1 million by 2025. Yet, 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. Significantly, the policy recognizes the important and basic human need for emotional and physical intimacy in older adults. A salient point is the recognition that human intimacy is a basic need that one does not relinquish merely because of placement in a nursing facility or with declining cognitive functioning. Put another way, even residents with Alzheimer’s disease and/or dementia may, under appropriate circumstances, engage in physical expressions of intimacy.

Experts agree that, depending on the circumstances, a resident with Alzheimer’s disease can be sexually active with his or her partner. But, what if the resident erroneously believes that another resident is his or her spouse? What is the facility’s obligation to the resident, or the families of either resident? Clearly, each case will have to be examined based on the unique facts presented. Some facilities may have the benefit of an ethics committee, which would be an appropriate resource for such multifaceted issues. The QAPI committee is another resource that can address the sometimes murky issues on a proactive basis.

A 2013 survey by AMDA—The Society for Post-Acute and Long-term Care Medicine revealed the extent to which staff education is needed in the area of sexuality among residents with dementia.

|See AMDA’s infographic of survey results|

According to Pat Bach, PsyD, a geriatric psychologist who was involved with AMDA’s 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.”

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 resident’s 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. Thus, it is import to reassess a resident with cognitive impairment when there is reason to do so, as with a change in condition. The cognitive assessment and the level of activity determined to be appropriate should be incorporated on the resident’s care plan and revised as needed. As with all other important clinical matters, documentation in the resident’s medical chart should be clear, concise, timely and appropriate.

“Acknowledging the need for sexual expression honors the person that the older person is now,” says Professor Gayle Doll, director of the Kansas State University Center for Aging and an expert on sexuality in long-term care. “Nursing home administrators, regulators, facility staff and families need a change of attitude. Most tend to look at sexuality in long-term care as a problem,” she says. “Respecting individuals and realizing they need to be able to experience intimate relationships across the life span is critically important.”

Final note

After Henry Rayhons’ acquittal, his son issued a statement that included the following, “Donna’s location did not change Dad’s love for Donna nor her love for him. It did not change their marriage relationship. And so he continued to have contact with his spouse in the nursing home; who among us would not?”

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.

Related article: Sexuality in SNFs: Balancing resident rights and resident safety

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.