This case takes place in Tennessee and involves sexual assault of a nursing home resident by another resident. The plaintiff was suffering from a host of mental issues and had been declared partially incapacitated by reason of mental incapacity. There has been a few occasions where a male resident in the assisted living facility had sexual encounters with the patient. A nurse employee reported the assaults to the senior living administration, but they told her they believed the sex to be consensual and instructed her not to report the incidents to the plaintiff’s guardian. The plaintiff alleges that the sex was non-consensual, since she lacked capacity to consent.
Question(s) For Expert Witness
- 1. Please discuss your background and experience as it relates to nursing home administration duties.
- 2. Given the brief case summary, what is the duty of the nursing home when discovering a patient with mental disability is engaging in sexual relations as described in the case summary?
- 3. Have you ever served as an expert witness on a case similar to the one described above? If so, please explain.
- 4. Please tell us why you’re qualified to serve as an expert reviewer of this case.
Expert Witness Response E-008297
Initially I would need to know if they performed a mini mental exam to determine the BIMs score of the resident. This will help determine if, indeed, she was able to consent. I would also want to know why this information would be withheld from a guardian and why a nurse would be instructed not to report. This not only can be seen as negligent but abuse, which is a reportable incident. If determined nonconsensual, then the facility failed to ensure a safe environment. I have not been an expert witness in a sexual incident, however, if she is determined mentally disabled then clearly this goes beyond just negligence. If she is mentally capable of consenting, then the facility also has an obligation to include this in her plan of care and also the makes plan of care.
Expert Witness Response E-010573
I have worked on a very similar case a few years back. There is no such thing as consensual sex with someone who has Alzheimer’s or other forms of Dementia. Since they lack the capacity to make their own decisions based on their diagnosis that is considered rape and, therefore, falls under the Elder Abuse statutes. As a nursing home administrator, it is my obligation to know what is going on in my facility and what is happening with every resident. Every employee in the facility is a mandated reporter, but it is my duty to investigate every allegation of abuse to a resident, report it promptly and conduct an investigation. In my role as an administrator, I take that responsibility very seriously. In such a case, the duty of the nursing home is to assure the safety of the affected resident. If this assault had been by an employee, the employee would be immediately suspended pending further investigation. In this case, the resident who was the aggressor would need to be given an eviction notice. However, eviction takes time since there is a lengthy procedure involved. In the meantime, the facility would need to provide a one on one caregiver/sitter to be with the aggressor on a 24 hour basis. The resident who was being attacked should be provided with psychological services and reassurance that this will not happen again. I am assuming that both families were notified of the sexual assault.