111 East Wacker Drive, Suite 500, Chicago, Illinois 60601

Recent Seventh Circuit Court of Appeals Case Highlights Long Term Care Facility’s Duty to Assess Consent in Residents’ Sexual Activities

The Seventh Circuit Court of Appeals recently upheld a substantial civil penalty assessed against a long term care facility for failure to appropriately assess whether sexual activities between residents were consensual. The court’s decision highlights the importance of assessing the issue of consent when residents engage in sexual activities in long term care facilities, especially when the residents involved have diminished physical and/or cognitive capabilities. The court’s decision also provides guidelines on how long term care facilities should respond if they become aware that residents are engaging in sexual activities; these guidelines should be considered when formulating written policies and training staff.

Long term care facilities need to carefully consider the complex issue of respecting residents’ rights to privacy and dignity, while also protecting their right to safety, when considering policies regarding residents’ relationships. Facilities should assess residents’ capacity to consent to relationships, especially when the resident may be cognitively or physically impaired.

Click here for a detailed summary regarding the court’s decision and other guidelines for evaluating the capacity to consent.

Should you have any questions regarding these issues, or require assistance drafting a policy regarding residents’ relationships, please contact Michael A. Airdo at [email protected] or 312-506-4480,  Mollie E. Werwas at [email protected] or 312-506-4474, or Matthew F. Liebert at [email protected] or 312-506-4471.