The Role of Genetics in Medico-Legal Cases
Apr 23 2024
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Over the last decade, the issue of sexuality has become increasingly important in the holistic approach to caring for older people expected from caring and nursing professionals. With the advent of legislation such as the Human Rights Act 1998 and the Equality Act 2006, care home providers should strive to provide environments that facilitate individual rights and choices in sexuality expression and intimate relationships. It is the implementation of this approach that can create confusion for staff in discerning what is and is not appropriate.
New guidance from the Royal College of Nursing (RCN) “Older people in care homes: sex, sexuality and intimate relationships”, August 2011 adds to the growing number of publications available to assist the nursing workforce in adopting good practice in this field.
Staff often express discomfort at discussing sexuality issues with older people, and older people do sometimes not want to discuss them. Moreover, some care and residential buildings were not designed to have a great deal of privacy or spaces for service users to share intimate time with a partner.
The legal framework in respect of sexuality and intimate relationships in the care setting is broad. From a civil perspective, nursing staff have a duty of care and confidentiality to patients. From a criminal perspective, sexual offences legislation is in place to prevent exploitation and abuse. As referred to earlier, the Human Rights Act 1998 is particularly relevant as it entrenches in UK law the European Convention of Human Rights which includes a specific right to a family life, Article 8. Care and residential home residents are as entitled to these rights as any other citizen (unless these are curtailed by law).
Practically, care home staff will also need to consider the service user’s mental capacity to make decisions concerning intimate acts and confidentiality regarding their sexuality. If the individual lacks capacity, views of their independent mental capacity advocate (if appointed) should be taken into account. It would also be advisable to seek legal advice immediately as entering into sexual relations with an incapacitated adult can result in a custodial sentence (R v Adcock  EWCA Crim 700).
Guidance from the RCN is that care home managers should ensure that their policies are developed in consultation with stakeholders. It is important that all types of stakeholder are consulted, including heterosexual, gay, lesbian, bisexual and transgender service users if possible. On current statistics, it is estimated that 5-7% of the population is gay, lesbian or bisexual and therefore in a care home of 100 patients between five and seven service users are likely to be gay, lesbian or bisexual and under current equality legislation, it is unlawful to discriminate against people by reason of their sexual orientation amongst other things.
Documentation should be available to residents and staff on where they can obtain support and advice. This will make it clear to both that the care home is one of openness and where, subject to it not being detrimental to other residents, sexuality and intimate relationships will be accepted and handled by staff with respect and professionalism.
Care home managers may wish to consider if their organisations could logistically offer more support for residents wishing to have more privacy. For example, should do not disturb signs be available or could double beds be provided? This will be a decision for each care home manager depending on their own organisational requirements but sometimes there are issues that have not been considered before or have been automatically ruled out on the basis that older people do not have sexual or intimate relationships which is simply not the case (studies indicate that more than one quarter of couples over 75 had sexual relations on a monthly basis, some more frequently). As always it is a matter of balancing risk, for example the risk of having fewer observations if a patient is allowed time for privacy, against the risk of not allowing a resident the privacy that he is arguably entitled to under Article 8 rights.
There are numerous examples of this issue being difficult to
deal with by nursing staff based on various case histories, some
examples of which are indicated below.
A key one would be that of a service user who wants to bring a sex worker into the care home. From a legal perspective, a first step would be to consider if the person has mental capacity. If the person has mental capacity to decide if he/she wishes to engage a sex worker, he/ she is free to make that decision. However, the difficulty is that the care home cannot be seen to be facilitating the use of its premises by sex workers. The care home manager risks potentially being liable for criminal offences under sexual offences legislation, i.e. “keeping a common, ill-governed or disorderly house”. Every case will turn on its own facts but any care home manager would be advised to make a clear and detailed risk assessment and to take legal advice before permitting a resident to invite a sex worker to their room. On an individual level, staff may also be liable under sexual offences legislation if they are seen to be making arrangements for residents to be visited by a sex worker. The regulator of care homes, the Care Quality Commission, could not sanction or provide guidance on how a visit by a sex worker to a resident could be arranged without risk of criminal prosecution.
Another example is if a staff member is asked by a resident to assist with masturbation. Requests such as these may appear clearly wrong but, in practice, where an older person is sexually limited by his own physical illness it may be difficult to determine how far a staff member can go to assist with this problem. Can they buy devices to assist the resident? Could they assist with the act itself? In short, a care worker or nurse should never undertake services akin to those of a sex worker such as masturbation. The Nursing and Midwifery Code of Conduct is more than likely to be breached and a criminal prosecution possible.
Less stark examples might be where a married resident starts a homosexual relationship with a fellow resident without his wife’s knowledge. Where both men are consenting adults with mental capacity and there is no suspicion of abuse or pressure, staff would be breaking their duty of confidentiality to the residents by informing the wife or family. Staff should simply advise and support the residents and not put pressure on them to act in a particular way. Of course, not all situations can be dealt with in the same way and should be looked at individually; but the general rule is that simply because a resident is in a care home does not mean that he or she does not have the same rights as any other member of the population.
As can be seen from the real examples discussed above, issues relating to older people and sexuality can be tricky for care home managers and staff to grapple with, but in the current legislative climate it is vital that they do. Issues relating to sex have for time immemorial been taboo, but it is possible for such topics to be dealt with sensitively in a manner to assist staff to provide a client-focussed service and benefit residents who wish to discuss sexuality issues with professional staff as part of their clinical care.