Failure to Assess Capacity and Protect Residents from Potential Sexual Abuse
Penalty
Summary
The facility failed to protect two residents from potential abuse when they were observed engaging in physical intimacy, including holding hands, kissing, and inappropriate touching, without documented assessment of their capacity to consent. Both residents had significant cognitive impairments, as evidenced by low or incomplete BIMS scores, and both had histories of behavioral issues, including sexual inappropriateness and wandering. Despite these factors, the facility did not complete or have a policy for assessing capacity to consent to sexual intimacy for either resident. Staff members observed the two residents engaging in intimate behaviors in a public area, with multiple staff confirming the incident and reporting it to supervisory staff. The care plans for both residents did not address sexual inappropriateness or include behavior monitoring, despite documented histories of such behaviors. The facility's abuse prevention policy required investigation of sexual activity involving residents with cognitive impairment, but this was not followed as required assessments were not completed. Interviews with staff revealed that the incident was witnessed by several employees, who noted the residents' prior behavioral histories and reported the event to the appropriate personnel. However, there was a lack of timely intervention and documentation regarding the residents' ability to consent, and the care plans were not updated to reflect the risk or address the behaviors observed. The facility also lacked a specific policy on assessing capacity to consent for sexual intimacy, contributing to the failure to protect the residents from potential abuse.