Striking the Balance: A Human Rights Approach to Consent for People with Dementia in Residential Aged Care

Abstract

Older people are often stigmatised as ageless and sexless individuals. This perception, and the increasing need for care as people age, means that many older people are subjected to prejudices when entering residential aged care facilities, and denied opportunities for sexual expression. This paper considers the often-forgotten human dignity of people with dementia in aged care facilities, and the need to provide opportunities for sexual expression. The paper considers the broad capacity spectrum for individuals with cognitive impairments and the difficulties of assessing decision-making abilities.  Drawing on international human rights instruments, the paper identifies rights to intimacy and sexual expression, and argues that those rights should be recognised in reforms to aged care legislation and policy. The paper considers some of the existing barriers to intimacy and sexual expression, including staff attitudes, and, taking New South Wales as an example, existing criminal legislation which provides a narrow view of consent. Recommendations are made with respect to emphasising the intrinsic benefits of intimacy and sexual expression for all people, regardless of age or cognitive impairment.