Failure to Establish and Implement Protocol for Assessing Capacity to Consent to Sexual Contact
Penalty
Summary
The facility failed to develop and implement policies and procedures establishing a protocol for determining residents' capacity to consent to sexual contact. Specifically, the facility's abuse investigation policy did not address how, when, and by whom determinations of capacity to consent would be made, nor where such documentation would be recorded. Additionally, the policy lacked the required component for coordinating situations of abuse with the Quality Assurance Performance Improvement (QAPI) program. These deficiencies were identified after staff observed two residents engaging in sexual behavior on multiple occasions, with no evidence that the facility had assessed their capacity to consent prior to the survey. One resident was admitted with diagnoses including vascular dementia, delusional disorder, bipolar disorder, Alzheimer's disease, and Lewy Body dementia, and had a BIMS score indicating moderately impaired cognition. This resident was under state guardianship, and there was confusion among staff and guardians regarding whether a capacity to consent assessment had been completed. The psychiatric nurse practitioner had not performed such an assessment prior to the observed incidents, and documentation of any evaluation was absent until after the survey began. The second resident involved also had moderately impaired cognition and multiple physical comorbidities. Nursing notes documented that both residents expressed a desire to engage in sexual activity and claimed to understand the consequences, but there was no documented assessment of their ability to consent. Interviews with staff, including the DON, social services director, and medical director, revealed a lack of awareness and established process for evaluating capacity to consent to sexual relationships. The administrator was unaware that the abuse policy required procedures for such assessments and coordination with the QAPI program.