Sexual acts in dementia unit lead to state review

A Faribault assisted-living home has been cited by state regulators after a male resident with dementia had sexual contact with six female residents over about three months this fall in a locked dementia unit.

Instead of investigating further, the home's administrators instructed staff members to ensure that there was no kissing, caressing or nudity in public areas and gave staff members a training session on "Intimacy and Sexuality in Later Life," according to a report released Thursday by the Minnesota Department of Health.

The man had been a resident since February and was observed fondling the women's breasts and groins over and under clothing and being naked several times with one partially dressed woman. Investigators did not determine whether the residents had intercourse. The incidents occurred between August and Nov. 7, when a staff member complained to county officials.

"Our administrator was off base. She made a poor judgment call and she was fired," said Mike Lewis, corporate CFO of Keystone Communities Management, which owns the home in Faribault and three others. "I think it's a very bright line: People in a locked memory care unit do not have the capacity to give consent for sexual relations, period."

State regulators, however, said the women in the Faribault home might have been able to give consent, and there may have been nothing wrong with the contact.

"Where they went wrong is they didn't make an assessment to find out if this was consensual," said Stella French, who heads the Health Department's Office of Health Facility Complaints. "You can't assume that someone with dementia does or does not have the capacity to give consent," she said. "And step two, you can't assume that the person actually has given consent. You have to make an assessment."

French said her office might have cited the Faribault home for violating resident rights if it arbitrarily had prohibited sexual intimacy without an evaluation.

Sexual activity has been an issue for years in nursing homes and assisted-living facilities. At first leery of any sexual expression in their facilities, staffs now routinely recognize residents' right to physical intimacy and allow time, and sometimes separate rooms, for consensual sexual contact between spouses or others.

But family members sometimes are disturbed by sexual activity, as were families in the Faribault case, including relatives of the male resident, Lewis said.

All seven of the residents still live at the facility, and there have been no new incidents while family and staff members keep a watch on the man, the official said.

Experts generally agree there are gray areas in determining if sexual expression in nursing homes and other long-term care settings is appropriate.

"There aren't many rules, but there are two," said Iris Freeman, associate director of the Center for Elder Justice and Policy at William Mitchell College of Law in St. Paul: "Staff cannot have sexual contact with residents, and among residents, no always means no."

Consulting family members doesn't always help because many are "squeamish about their parents' sexuality," Freeman said.

One national expert expressed support for the dismissed administrator and believes assessing whether a resident is comfortable in a sexual situation isn't so difficult.

"Even with someone with fairly advanced dementia, you often can tell that she doesn't like the food you offer her," said Dr. Robert Kane, director of the Center on Aging at the University of Minnesota. "You have to pay attention, but often you can tell if she likes the person she's snuggling with as well."

Three citations

The state citations carry no monetary penalties. Keystone was cited for not reporting possible abuse by one resident on others, not providing staff with adequate training and not having an abuse-prevention plan for residents.

Criminal charges against the male resident seem unlikely because state investigators considered him a victim. The former administrator could be charged with abuse under the state's vulnerable adult protection law.

To read the report, go to www.startribune.com/a875.