Sex on the inpatient unit between patients - need for capacity evaluation?

Jun 7, 2013
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So, I was in the psych ER semi-recently and was called to one of our inpatient floors (geriatric) after two patients allegedly had sex. Both with long history of severe mental illness.

She states they had sex, says she didn't give consent, feels it wasn't rape, doesn't want to press charges, but would like to be tested for STDs and what not. Man states they did not have sex, that they kissed, perplexed why I'm talking to him, doesn't want to be tested.

So, I thought my job was done. She would get tested and doesn't want to press charges.

I am then called by my attending to "Document a capacity evaluation." So, I did.

However, I have not been given a clear answer as to why, as someone who is working in the psych ER, do I need to take time away from that to do capacity evaluations in the middle of the night. In discussing with colleagues and other attendings, the answers I have gotten are mixed.

One group says "Well she might have needed plan B (Uh, geriatric, post-menopausal....and you have quite some time to take plan B....so....next)....Well it's a vulnerable population (ok, and?)...it just has to be done (always a great answer)..."

Other group says "That's ridiculous, you need to find out if it was consensual and if they want to be tested/treated. If it's not consensual, then call the police."

So, I'm sure this has happened to others. What is/was your way of handling this? Why, if at all, does capacity need to be documented if patients have sex? How does that change acute management?

All comments welcome.
 

notdeadyet

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You do not have/not have general "capacity.". The question is whether he has capacity to determine whether to have consensual sex and whether she has capacity to determine whether to press charges, no?


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whopper

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Sex on units is an area that has not been directly confronted in psychiatric landmark cases as far as I'm aware, and I have been in forensic psychiatric lectures stating that this is a possible hot area for legal exploration.

There have been cases that have only indirectly stated on the law's stance on this. For example, the Supreme Court of the US did state that reproduction is a major life activity. That is to hold someone's reproductive status against them is discrimination.

In general, it's safer to make sure patients aren't having sex, but if pushed, someone could argue that you're infringing on their rights. The issue of sex happens often in long-term units where patients could be there for years if not the rest of their lives and patients do have sex though it's often in secret or with staff members looking the other way.
 

whopper

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double post
 

PistolPete

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I've been told that at the VA, not only can we not stop patient's from having sex, we actually have to provide condoms (if they request it). At least that's what I've heard from staff, and I don't think it's ever happened, to my knowledge…
 
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Yes, obviously it's capacity to enter into a sexual relationship. An evaluation of course is a must, but why does "capacity" need to be documented? This isn't "document capacity to enter into a relationship BEFORE the fact" (I can see that)

Why document it AFTERWARDS? Why isn't getting the story, assessing what happened, and finding out whether the person feels it was rape, wants to be tested, and/or press charges enough?
 

notdeadyet

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Yes, obviously it's capacity to enter into a sexual relationship. An evaluation of course is a must, but why does "capacity" need to be documented? This isn't "document capacity to enter into a relationship BEFORE the fact" (I can see that)

Why document it AFTERWARDS? Why isn't getting the story, assessing what happened, and finding out whether the person feels it was rape, wants to be tested, and/or press charges enough?
Because if a person doesn't have capacity to decide whether or not to have sex, even if she states that it was consensual, by definition it was rape and would be handled differently than truly consensual sex between two people with capacity.

Make sense? It isn't legal to have sex with someone who lacks capacity, whether the lack of capacity is due to alcohol, mental illness, etc.
 

CityLights

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Because if a person doesn't have capacity to decide whether or not to have sex, even if she states that it was consensual, by definition it was rape and would be handled differently than truly consensual sex between two people with capacity.

Make sense? It isn't legal to have sex with someone who lacks capacity, whether the lack of capacity is due to alcohol, mental illness, etc.
Is it still rape if the partner lacked the ability to evaluate the other patient's capacity (or if both partners did not have the capacity to provide consent)? What would be the implications for the partner?
 

billypilgrim37

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Is it still rape if the partner lacked the ability to evaluate the other patient's capacity (or if both partners did not have the capacity to provide consent)? What would be the implications for the partner?
It's absolutely still rape. That doesn't mean that the perpetrator would be legally culpable if they did not meet court standards either to stand trial or to be guilty. I had a man with severe dementia who sexually assaulted someone at his nursing home, and he had no idea that he had done that. He raped her, but that doesn't mean he's guilty of the crime of rape, since he didn't have capacity (not the legal terminology of course) to commit rape.