Consent to Sexual Activity in Long-Term Care

Understanding capacity and dementia

Sara Pon & Krista James

Consent to Sexual Activity in Long-Term Care

Contrary to public perception, some people stay interested in sexual activity into late life. Physical intimacy can be an important personal connection. Law and policy must respect the sexuality of older people while protecting vulnerable adults from abuse, particularly in long-term care.

Consent is critical to all sexual activity. A person must have decision-making capacity to engage in sexual activity, and capacity is impacted by dementia, which is prevalent in long-term care. However, dementia does not automatically mean that a person does not have capacity to consent to sex.

A long-term care resident who is not able to make legal, financial, or complex health care decisions may still have the capacity to make other everyday decisions. Capacity can fluctuate from day-to-day or even hour-to-hour, and circumstances and communication support can impact an adult’s decision-making capacity. Dementia can cause symptoms and changes related to sexuality, such as increased or decreased interest in sexual activity or disinhibition. People also sometimes forget their current partner and seek out a new partner, or have their behaviours misinterpreted due to changes in how they communicate.1

There is no legislated test for when a person has capacity to consent to sex while in long-term care. A person’s capacity would need to be assessed if there were indicators that they did not have capacity to consent to a sexual interaction. Analysis of this topic by Seniors First BC suggests a person would need to understand the nature and consequences of the activity and have an operating mind which can give consent. In practice, family and staff often focus on trying to prevent sexual activity and intimacy.2 However, another person cannot provide substitute consent for sex on behalf of an older person.

If an older adult does not have capacity to consent to sexual activity, and there are concerns that sexual abuse or assault has occurred, there are protection and response measures in BC. The Adult Guardianship Act provides protective measures for adults who are unable to seek support and assistance. Designated agencies can respond to all types of abuse or neglect, including sexual abuse. The Community Care and Assisted Living Act requires long-term care facilities to protect residents from abuse and requires operators to report abuse or neglect. However, the definition of sexual abuse excludes “consenting sexual behaviour between adult persons in care” (Sch D, s 1) from being a reportable incident.

Law and policy must balance respecting the rights of capable and consenting older adults to engage in intimacy while living in long-term care against the need to protect vulnerable adults from exploitation and abuse. If older people have the capacity to consent to sexual activity, their dignity and autonomy must be respected. Sex and intimacy are a natural part of the human experience and can have many benefits. If older people no longer have the capacity to engage in sexual activity, long-term care homes and
concerned family members should find other ways to support the relationships that are meaningful and important to older people. Long-term care should also ensure their policies and practices are inclusive, so that LGBTQ2SI+ seniors feel a sense of belonging and safety.

  1. Alzheimer Society Canada, “Intimacy and sexuality,”: |
  2. Seniors First BC, Legal Issues in Residential Care: An Advocate’s Manual (2014), at 146-157. |