(Implicit) Consent to Intimacy

37 Pages Posted: 24 Aug 2016 Last revised: 26 Jun 2017

See all articles by Roy G. Spece

Roy G. Spece

University of Arizona - James E. Rogers College of Law

John Hilton


Jeffrey Younggren

University of Missouri at Columbia

Date Written: June 26, 2017


We discuss capacity of long-term care residents to consent to intimacy with their spouses/partners and policies to protect residents’ rights. The policies provide: (1) competence is presumed; (2) consent can be through explicit verbal or written directives, or, in certain circumstances, by failure to object either verbally or physically; (3) if there is no directive and the facility doubts a resident’s competency, it shall require a competency evaluation using a specified approach; (4) residents retain the right to revoke consent regardless of competency, and a prior directive that intimacy ceases if the resident becomes incompetent shall control; (5) residents should be encouraged to include specific instructions should they become incompetent and to appoint a surrogate decisionmaker; (7) unless it becomes obvious that the resident might lack the capacity to object orally or physically or the resident communicates a desire to revoke consent, the facility shall ensure the resident’s privacy; (8) if it appears that the resident might lack capacity and is suffering harm, a surrogate or qualified employee can request the spouse/partner to confirm the resident has not verbally or physically refused intimacy; (9) if there is confirmation, a surrogate or qualified employee should bring the matter to court only if she determines that it is in the resident’s best interests to cease intimacy, best interests being determined by considering the resident’s past representations, other indications of her critical and experiential interests, and her physical and emotional wellbeing; and (10) the court should determine best interests using the same criteria.

Keywords: capacity to consent, dementia, long-term care residents, intimacy, abuse, rights of patients

Suggested Citation

Spece, Roy G. and Hilton, John and Younggren, Jeffrey, (Implicit) Consent to Intimacy (June 26, 2017). 50 Indiana Law Review 907 (2017), Arizona Legal Studies Discussion Paper No. 16-27, Available at SSRN: https://ssrn.com/abstract=2827903 or http://dx.doi.org/10.2139/ssrn.2827903

Roy G. Spece (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

John Hilton


Jeffrey Younggren

University of Missouri at Columbia ( email )

332 Cornell Hall
Columbia, MO Columbia 65211
United States

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