Failure to Protect Resident with Severe Cognitive Impairment from Sexual Abuse
Penalty
Summary
A deficiency occurred when a resident with severe cognitive impairment and a history of schizoaffective disorder, delusions, and hallucinations was found engaged in a sexual act with another resident. The incident was discovered by a registered nurse during a night shift, who observed the male resident kissing and touching the female resident in a bathroom. The female resident was described as smiling and not in distress at the time, and she verbally indicated she was fine with the interaction. However, her medical records consistently documented severe cognitive impairment, a BIMS score of 00, and ongoing psychosis, delusions, and disorganized thought processes. She was under a court order for mental health treatment and required daily management of her psychiatric needs. The facility's internal investigation concluded that the incident was consensual based on the resident's affect and statements. The assessment of the resident's capacity to consent to sexual activity was documented as positive, but the evaluation lacked evidence that the resident understood the relevant information, risks, or consequences of sexual activity. There was no documentation showing that the resident could verbalize or comprehend these risks, and the assessment form did not specify what information was discussed or understood. Interviews with staff, including CNAs and LPNs, indicated that the resident was known for delusional and childlike behaviors, with no prior history of sexual conduct with other residents. Staff also reported that such behavior would be unusual for her and that they would expect to be notified if it occurred. The Director of Nursing and other staff described the resident as having moments of clarity but generally being confused, delusional, and unable to care for herself. The DON stated that the resident was able to express her needs and make decisions, but the documentation and interviews did not demonstrate that the resident had the cognitive ability to consent to sexual activity. The evaluation for capacity to consent was conducted by the DON alone, with no other witnesses present, and the form was signed by another staff member who was not present. The lack of thorough documentation and assessment of the resident's understanding of the situation led to the facility's failure to ensure the resident was free from abuse.