Failure to Protect Resident from Sexual Abuse Due to Inadequate Assessment and Policy
Penalty
Summary
The facility failed to protect a resident from sexual abuse, as evidenced by an incident involving two residents with cognitive impairments. One resident, who was severely cognitively impaired and had a history of inappropriate sexual behavior, was observed by staff touching another resident's genital area while both were waiting to go outside to smoke. The touching occurred outside the clothing, and the second resident, who was moderately cognitively impaired and assessed as at risk for abuse and neglect, did not voice opposition at the time. Staff intervened upon witnessing the incident and separated the residents for closer observation. Documentation and interviews revealed inconsistencies in staff accounts regarding the nature of the touching, with some reports indicating the contact was outside the pants and others suggesting it may have been inside. The second resident did not recall the incident but, when questioned, expressed that she was comfortable with what had happened. Both residents had been observed interacting closely and holding hands prior to the incident. Staff noted that both residents exhibited confusion at times, raising concerns about their capacity to consent to sexual activity. The facility did not have a policy in place regarding consensual relationships between residents, and staff were uncertain about the appropriate procedures to follow in such situations. The facility's abuse prevention policy defined sexual abuse as non-consensual sexual contact and required evaluation of a resident's capacity for consent if there was reason to suspect incapacity. Despite these requirements, the facility failed to ensure adequate protections were in place to prevent abuse and to properly assess the residents' ability to consent, resulting in a deficiency.