Farnoosh 2nd

“There is one thing that dementia cannot take away, that is love. Love is not a memory – It’s a feeling that resides in your heart and soul”

In 2014, Iowa Rep. Henry Rayhons was charged with third-degree sexual abuse after having sex with his wife in her nursing home despite being told she lacked the mental capacity to consent.  He was ultimately found not guilty at his trial in April 2015. However, this case raised the issue of whether and when people with dementia have the capacity to consent to sexual intimacy and how nursing homes should deal with nuances of dementia.

Capacity is one of the elements of informed consent, which include: (1) the person has to be informed; (2) the consent has to be voluntarily, and (3) the person should have the mental and emotional capacity to consent. “Mental capacity” is defined in the Merriam-Webster Dictionary as a “sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter.”  Legally, the determination of a person’s mental capacity is fact specific, and the level of required mental capacity changes depending on the issue at hand.[1]


Understanding the Effects of Dementia and Consent

Dementia is associated with a group of symptoms affecting memory, thinking, and social abilities. The impact of dementia on competency includes difficulty learning and retaining new information, difficulty recalling personal history, difficulty expressing preferences and choices, and impairment of judgment and vulnerability to undue influence.

Individuals suffering from dementia will face many issues regarding autonomy and safety.  Nonetheless, a dementia diagnosis alone does not mean that a person lacks capacity to consent to sexual relations or to many other activities.

Capacity has been found to be task specific.  Specifically, individuals suffering from dementia may lack the capacity to make a big decision, but not small decisions. Dr. Robert Bender, a Des Moines physician who specializes in geriatric medicine and memory, and who testified at trial on behalf of Rayhons, believes that the new advances in neuroscience indicate that parts of the brain related to affection and love can still operate even when other functions decline.

Under state statutes, there is a rebuttable presumption that all individuals have the capacity to make decisions.[2]  Moreover, there has to be a causal link between the impaired mental function and the issue or action in question. Moreover, in considering the causal link, the frequency, severity, and duration of periods of impairment need to be considered. In the Rayhons case, the nursing home staff members testified that Mrs. Rayhons was always happy to see her husband, and there was no evidence that she had resisted any intimacy.  Consent and Marital Privacy

Rayhons concerns not only the issue of decision making for elderly people with dementia, but also the issue of marital privacy – whether an individual wants her children or her doctor to interfere with her marital relationship, and whether legal standards and changing medical practices should interfere with one’s desire of intimacy.

The right of privacy protects the decisions of individuals concerning marriage, procreation, contraception, abortion, and family relationships, and this right extends to private, voluntary, intimate relationships between couples. Fundamentally, the government should not interfere in these decisions unless there is a compelling reason to do so. With respect to dementia patients, each person should be considered individually, as each person’s circumstances and level of dementia is different, and one should not be deprived from privileges and pleasures most of us enjoy as humans solely due to a dementia diagnosis.

Unintended Consequences and What Can Be Done

Moreover, cases like Rayhons may stop spouses from visiting or becoming intimate with their partners in nursing homes for fear that they will face similar charges.  Clearly, situations like Rayhons have the potential to disrupt the fundamental rights of privacy that we all should have.

That being said, it might be best for a married couple to discuss these issues openly with their families and perhaps to sign a document indicating their intimacy desires before they are determined to be incompetent. Furthermore, it may be in the benefit of the older adults with dementia that the nursing homes adopt institution-wide acceptance for sexual activity while they implement a periodic cognitive examination to determine the capacity to consent to sexual intimacy.   Lastly, if we live in a system of patient-centered care, then the expression of sexuality and intimacy, which relates to autonomy, needs to be further protected in our practice and policy to the extent possible.

[1] In re Marriage of Greenway, 217 Cal. App. 4th 628, 629, 158 Cal. Rptr. 3d 364, 366 (2013)
[2] For example, see: Cal Prob Code § 810 provides that:  (a) there is a rebuttable presumption that all persons have the capacity to make decisions and to be responsible for their acts or decisions, and (b) a person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions, and finally (c) a judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.
In Washington, RCW 11.88.010 (c) states that a determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.

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