Failure to Prevent Sexual Abuse of Cognitively Impaired Residents
Penalty
Summary
Facility staff failed to appropriately assess, supervise, and ensure an environment free of sexual abuse for two legally incapacitated residents with severely impaired cognition. Both residents, one with a BIMS score of 2 and the other with a BIMS score of 3, were found unsupervised and involved in a sexual encounter in one resident's bed, both unclothed from the waist down. Staff discovered the incident during the night shift, and it was noted that one resident had a history of seeking male attention and inviting male residents into her room, while the other had a history of sexually inappropriate behavior and aggression. Medical records and care plans for both residents documented severe cognitive impairment, legal guardianship, and the need for supervision and redirection due to behavioral symptoms and impaired judgment. Despite these documented vulnerabilities, the facility permitted the residents to engage in sexual activity without adequate supervision or intervention. Staff, including the Administrator and Nurse, acknowledged that the resident involved was unable to recall the incident, understand the risks or consequences of sexual encounters, or provide meaningful consent due to her dementia and cognitive deficits. Interviews with the social worker, legal guardian, and staff confirmed that the resident could not process or remember the events and did not have the capacity to understand or consent to sexual activity. The facility's own policy required both decision-making capacity and capacity for sexual consent evaluations, yet the resident had previously been declared mentally incapacitated and unable to make informed decisions. Despite this, a physician's assessment after the incident concluded that the resident had capacity to consent, a determination that was questioned by staff and the legal guardian. The lack of supervision and failure to intervene allowed the incident to occur, resulting in a situation where two severely cognitively impaired, legally incapacitated residents were left vulnerable to sexual abuse.
Removal Plan
- Residents were immediately separated.
- Resident R909 was escorted to the nursing station for supervision.
- Resident R910 was placed on one-to-one supervision for safety and continued monitoring.
- Administrator was notified by the nurse.
- Physicians, legal guardians, and the ombudsman were notified.
- Police were called to the facility, arrived on site, and interviewed both residents.
- Pain and skin assessments were attempted on both residents.
- Physicians completed a Capacity for Sexual Consent/Intimacy Evaluation on both residents.
- Capacity results were shared with both residents and their legal guardians along with counsel on safe sex practices.
- Staff were educated on the capacity results.
- Care plans updated to reflect the determination that both residents were deemed cognitively able to consent to sex, their desire, and interventions to ensure privacy, safety and dignity.
- If either resident is likely to seek out other residents for non-exclusive sexual behavior, the facility's approach to limiting access to residents who are unable to consent includes providing staff education and increasing supervision as necessary.