Care Home Staff At Risk Of Prosecution Over Dementia Patients' Sex Lives, UK

Care home practitioners and old age psychiatrists have been warned that they could face long jail sentences if they allow a patient with dementia to have sex even with a long-term partner.




The warning, delivered by Professor Peter Bartlett, Professor of Mental Health Law at Nottingham University to the Annual Conference of the Royal College of Psychiatrists, follows widespread concern within care homes that staff might be at risk of prosecution under the Mental Capacity Act which came into force at the end of 2007.



"Take the case of a husband who comes visiting on a Saturday afternoon and closes the door of his wife's room, leading to staff making the assumption that they are having sex. It may seem perfectly acceptable at one level. But because someone with dementia does not understand what sex means, the encounter is sexual assault and therefore extremely illegal."



Professor Bartlett, who has investigated the problem after numerous requests for clarification from health care practitioners, said that hundreds of care homes face this dilemma every single day: whether they should prevent a married couple from having sex while also attempting to provide patient-centred care.




He said: "The Mental Capacity Act provides the opportunity for people to document their wishes in an 'Advanced Directive' in advance of suffering from dementia. But sex is rightly considered too personal a decision to be included in such a directive. The husband may assume a continuing consent to sex based on the long-term relations he has had with his wife. But I find it difficult to find a reason to make this assumption. One major problem is: how do we know whether the person is liking it?"



Professor Bartlett said that people with dementia living at home with a partner presented an even more complicated scenario. "Technically they should be on the vulnerable adults at risk register. It is somehow easy to understand how this law can be applied to children who lack the capacity to understand the meaning of the sexual act. We should not behave differently when it is an older person who lacks capacity."



Speaking after the meeting, Dr Peter Jeffreys, consultant old age psychiatrist at Northwick Park Hospital in North London, said there was an 'iceberg situation' with an urgent need to clarify how clinicians can manage sexual activity among dementia patients while protecting against abuse. "If a person lacks capacity, a clinician or care home staff member could be seen as colluding in a criminal act. Opportunities for intimacy are clearly an important aspect of quality of life but sex may be a step too far in residential care," Dr Jeffreys said.



Reference


The Annual Meeting of the Royal College of Psychiatrists, Imperial College, London,
1 - 4 July 2008



Royal College of Psychiatrists