Failure to Complete Required Capacity to Consent Assessments for Sexual Activity
Penalty
Summary
The facility failed to thoroughly complete assessments for capacity to consent to sexual activity as required by its own policy for at least one resident. Specifically, the policy mandates that residents wishing to engage in sexual activity must be assessed for their ability to consent, especially if they have a guardian or cognitive impairment. The assessment is to be completed by the interdisciplinary team with input from the resident’s physician or psychiatrist, and should include evaluation of the resident’s awareness of the relationship, ability to avoid exploitation, and understanding of potential risks. However, for two residents known to engage in sexual activity, these assessments were either incomplete, missing, or not properly documented. One resident, who had a legal guardian and diagnoses including schizoaffective disorder, anxiety, and depression, was found to have engaged in sexual activity with another resident. Although the resident was assessed as cognitively intact on the MDS, the care plan and capacity to consent forms were incomplete or lacked required signatures from the resident, guardian, evaluator, or administrator. The legal guardian had communicated that the resident did not have the legal capacity to consent to sexual activity, and the facility’s documentation did not reflect a thorough interdisciplinary assessment as required by policy. Additionally, the resident was not moved to a secured same-sex unit as requested by the guardian after the initial incident. For the second resident, who also had significant psychiatric diagnoses and was adjudicated as incapacitated and disabled by the courts, there was no capacity to consent form completed at the time of the incident. The legal guardian explicitly stated that the resident did not have the legal capacity to consent to sex and requested increased supervision and a transfer to a same-sex unit. Despite this, the facility’s documentation and investigation did not show that the required interdisciplinary assessment was completed, nor was there evidence of proper coordination with health professionals or the guardian as outlined in the facility’s policy. Interviews with staff and health professionals confirmed that assessments for capacity to consent were not consistently performed or documented.