Sexual expression in long-term care homes: Consent and capacity

The Windsor Review of Legal and Social Issues published an article in 2014 titled Sexual Expression In Long-Term Care Homes: Consent & Capacity¹ which provides elder law practitioners with some insight into the issue of sexual expression in long-term care homes. This is a live issue that remains on the agenda of most elder law conferences, and recently generated debate and discussion at the 2015 Canadian Elder Law Conference in Vancouver. The Canadian Bar Association Elder Law Section is pleased to provide readers with this précis of the above-referenced article by the author.

Canadians are aging and many will soon be living in a long-term care home. The fundamental principle of Ontario’s Long-Term Care Home Act is to treat the LTC facility as the resident’s home “where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”² Residents should have the freedom and privacy to engage in sexual expression provided it is otherwise lawful. However, capacity, confidentiality and confusion about the role of families in consent determinations are sources of concern about which the current law gives little direction.

LTC homes are subject to a duty of care³ and may be liable in tort if they fail to conduct a capacity assessment to determine capacity to consent to sexual activity, provide a safe and private environment to engage in sexual expression, intervene in sexual activity between residents where one or more is incapable of consent, or adequately train staff to identify situations where capacity may be at issue. Yet policies created to prevent abuse cannot simply prohibit sexual activity among residents. Balancing the interests of those in need of protection and allowing those who are lawfully capable to engage in sexual relationships requires consideration of a number of key factors, including:

• What does capacity to consent to sexual activity require?
• How should this capacity be determined?
• Who should determine it?
• When should someone be assessed for capacity to consent to sexual activity?

The legal presumption of capacity in Ontario⁴ applies unless there are reasonable grounds to believe the resident is incapable.⁵ Compelling evidence is required to override this presumption and, notwithstanding the presence of an impairment, the relevant question is whether the individual retains sufficient capacity to satisfy statutory requirements.⁶ So, even residents in LTC homes diagnosed with a cognitively impairing condition are presumed capable of consenting to sexual activity.

In Ontario, the Substitute Decisions Act (SDA), defines a person as incapable of personal care “if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”⁷ Both components of this definition must be met in order for an individual to be deemed mentally capable in the area being assessed.

The distinction between “failing to understand” and “inability to understand” is significant. In the context of sexual expression, an ability to understand requires a person to have a basic understanding of body parts, sexual and non-sexual touching, abusive and non-abusive touching, and any causative connection between contact and adverse consequences. In Salzman v. Salzman, Ms. Salzman had Alzheimer’s with the result that she was unaware of her colon surgery and unable to appreciate the possible adverse consequence of “significant bleeding” from anal intercourse. The problem was not that she failed to appreciate reasonably foreseeable consequences, but that she was cognitively unable to do so ⎼ a causative connection between the lack of understanding and an adverse outcome.⁸

Three principles relevant to LTC homes are found in the definition of consent in section 273.1 of the Criminal Code: an individual must be legally capable of consent;⁹ no one may consent on another’s behalf; ¹⁰ and, consent is time-specific – a person cannot pre-consent to sexual activity.¹¹ Subsections 273.1(1) - (2) suggest five criteria required for an individual to have capacity to consent to sexual expression: a basic understanding of sexual and non-sexual touching; the ability to express a personal choice; the ability to resist coercion or exploitation (verbally or non-verbally); the ability to recognize distress or refusal in a partner and stop the activity; and the ability to understand appropriate and inappropriate locations and times.

The Criminal Code, the SDA assessment structure, and the jurisprudence prescribing the legal thresholds for capacity in other areas,¹² offer insight as to the threshold criteria for capacity of sexual consent and should be the benchmark for LTC homes to determine when to intervene and request an assessment.¹³

Clinical evaluations are not legal capacity assessments. If a legal assessment is necessary, the facility should follow the proper procedure for such an assessment as required by the SDA. Although the SDA does not specifically define what is required for capacity to consent to sexual expression, it creates a structure for conducting capacity assessments. Preventative measures should only be a factor if a resident is found incapable of consenting within the meaning of capacity in section 45 of the SDA.

LTC homes should have a policy on the sexual expression of residents, communicated to residents, families, Power of Attorneys and substitute decision-makers, that clearly articulates the presumption of capacity and the limitations of a substitute decision-maker or Power of Attorney. While not an explicit requirement of the LTCHA, having such a policy resonates with the preamble and the requirements of sections 1, 2(6), and 3, and supports the LTC home’s duty of care.

 LTC homes should be cognizant of the freedom of residents to sexually express themselves, alert to the issue of capacity for sexual expression, and decisive in requesting a legal capacity assessment when clinical evaluations or observed behaviour support a reasonably foreseeable risk of harm to the resident.

Emily Hayter is a barrister and solicitor in Toronto.

End Notes

1.  Emily Hayter, “Sexual Expression In Long-Term Care Homes: Consent & Capacity” (2014) 35 WRLSI 54. This précis has been provided with the permission of the Windsor Review of Legal and Social Issues
2. Long-Term Care Homes Act, 2007, SO 2007, c 8, s 1
3. See Wellesley Hospital v. Lawson (1977), [1978] 1 SCR 893, 76 DLR (3d) 688; Stewart v. Extendicare Ltd, [1986] 4 WWR 559, 38 CCLT 67 (Sask QB)
4. Substitute Decision Act, 1992, SO 1992, c 30, s 2 [SDA]; Health Care Consent Act, 1996, SO 1996, c 2 Sch A, s 4(2)
5. See e.g. SDA, supra note 2, s 2(3)
6. Re Koch, 33 OR (3d) 485 at para 107 (available on CanLII) (ON SC) (Quinn J)
7. Supra note 2, s 45 [emphasis added]; see also Ontario, Ministry of the Attorney General, Guidelines for Conducting Capacity Assessments (Capacity Assessment Office, May 2005)
8. Ibid (Unfortunately, no capacity assessment was conducted in this case, and while not fatal to the decision, an assessment and subsequent analysis by the court would have been useful for lawyers, judges, assessors, LTC home personnel, and advocates for the elderly. As with any assessment of capacity, the determination is fact dependent and case specific, but this was a missed opportunity to see how the “understand and appreciate” test is implemented for capacity to consent to sexual activity).
9. Criminal Code, RSC 1985, c C-46, s 273.1(2)(b)
10. Ibid, s 273.1(2)(a)
11. Ibid, s 273.1(2)(e); see also R v J(A), 2011 SCC 28, 2 SCR 440
12. See for e.g. Banton v. Banton (1998), 164 DLR (4th) 176, 66 OTC 161 (Ont Ct J) (Cullity J)
13. The inability to meet some or all of these criteria would not necessarily preclude a resident from sexual activity