Equality and Human Rights Commission

This guidance addresses issues of sexuality, intimate relationships and sex, particularly for older people living in care homes. Its goal is to support nurses and care staff to address the needs of older service users in a professional, sensitive, practical and legally-compliant way. The guidance covers the legal and professional frameworks within which nursing and caring practice takes place, including policies that address sexuality and sexual health needs in care homes. It sets out principles of good practice and how these apply to policies, care environments, organisational systems and care practices. It also suggests how to identify and overcome barriers to expression of sexuality and how to broach issues concerning sexuality, intimate relationships and sex. The guidance includes case examples, a glossary of key terms and options for further reading and advice. It also provides ‘key facts’ about sexuality, intimate relationships and sex in later life.

• Adults living in residential settings, unless they have had certain rights and
  freedoms curtailed or restricted by the law, generally have the same basic rights and freedoms as any citizen to live their lives as they wish. This includes possibly doing things that others might consider to be unwise or inappropriate.
• The general constraint on anyone exercising their personal rights is only that doing so should not unreasonably have an adverse effect on the rights of others.
• Care home staff should strive to achieve a balance between an individual’s right to privacy and control with the need for care and observation: for example, residents remaining in bedrooms undisturbed or with locked doors and staff waiting to be invited before entering.
   

This document was developed by Royal College of Nursing members and staff, and a range of external stakeholders, including older people, as part of the RCN Nursing Older People Strategy.

Why is sexuality an issue?

The guidance explains that care home residents should be able to enjoy privacy, choice and fulfilment in all aspects of their lives; however, achieving this is not always straightforward.

Care home buildings do not always facilitate privacy or intimacy, particularly in shared living space or if residents are unable to lock their bedroom doors. Residents’ need for assistance with everyday activities is generally high, necessitating the use of clinical equipment, such as single variable height beds, which tend to inhibit intimacy between two people. Many care homes do not have rooms with double beds. Staff may regard sexuality as a ‘taboo’ subject and may not have had any training in broaching the issue with older people in their care. In addition, entrenched attitudes and standardised practice can inhibit the acknowledgement of sexuality in care settings.

The guidance expressly addresses situations in which issues of sexuality, intimate relationships or sexual expression are seen as ‘a problem’. It proposes a framework for identifying in each circumstance whether there is, in fact, a problem and, if so, for whom and whether action needs to be taken. This is helpfully illustrated with a flowchart to guide the decision-making process.

Legal and professional frameworks

The guidance explains that legislation, National Care Standards and government guidance do not generally address the issue of intimate relationships. Legislation can, however, place boundaries on the extent to which staff caring for individuals may become involved in their choices for sexual expression.

The guidance contains an appendix setting out details of relevant legislation and professional frameworks. These are:

• the Human Rights Act (HRA) 1998
• anti-discrimination legislation
• mental capacity legislation covering England and Wales, as well as Scotland
• the Sexual Offences Act 2003
• standards and guidance set by the Nursing and Midwifery Council
• the Safeguarding Vulnerable Groups Act 2006

Applying human rights in a care home setting

The HRA incorporates into domestic law the rights and freedoms guaranteed under the European Convention on Human Rights. Individuals can bring claims under the HRA against public authorities for breaches of Convention rights.

The right to respect for private and family life is particularly relevant in care homes. It recognises the fundamental ethical and legal principles of autonomy and consent – that is, the right of individuals to make decisions and choices about their life without undue interference by others.

The right to respect for private and family life is not absolute – it may be restricted in certain circumstances; for example, to protect the rights and interests of others.

The guidance explains that adults living in residential settings, unless they have had certain rights and freedoms curtailed or restricted by the law, generally have the same rights and freedoms as any citizen to live their lives as they wish. This includes doing things that others might consider to be unwise or inappropriate.

For example, an adult resident of a care home, within the privacy of his or her own room, may want to engage in consensual intimate relations with another adult. Where they both have the mental capacity (as defined in law) to do so, the guidance explains that ‘it is difficult to see what constraints a care home provider could reasonably impose on residents with capacity exercising such a choice, as long as it had no detrimental impact on other residents’. This would apply whether the resident and chosen partner were married or not, or of the opposite or same sex.

Maintaining confidentiality

The guidance notes that it is not uncommon for relatives to object to intimate relations arising in care homes. However, it will often not be appropriate for staff or managers to discuss the situation with others without the explicit consent of the resident concerned. Residents have legal rights to confidentiality, and registered providers and managers should ensure that staff who are aware of a relationship arising between residents,
observe the law on client/patient confidentiality.

Key policy and practice issues

The guidance advises care home service providers how to meet their legal requirements and develop good practice in relation to:

• policies
• care environments and facilities
• organisational systems and care practice, and
• equipping staff to broach issues of sexuality.

It states that care home service providers should strive to:

• develop policies which support the rights of all the people who live, visit or work in care the homes
• offer environments which facilitate individual rights and choices in sexuality expression and intimate relationships, and
• offer support and appropriate education for staff in dealing with issues of sexuality, intimate relationships and sex.

Care systems and care delivery should:

• be person-centred
• focus on the perspectives of individuals within the context of their unique lives and experiences
• be open to learning about the person’s significant experiences and relationships
• promote and support human rights, dignity, privacy, choice and control
• promote clear boundaries which protect and support residents and staff.

Case examples

These aspects of good practice are illustrated by means of hypothetical case examples. For example, these include:

• a resident with capacity starts a relationship with another resident who also has capacity and is married with a wife at home.
• Two men living in the home tell senior staff that they have fallen in love and want to be together. Both have mental capacity to make this decision but some physical incapacity. One of the men has adult children who contribute to the cost of his care but strongly object to their father’s new relationship.
• two residents with dementia form a loving relationship and are seeking opportunities to lie together. Both are deemed not to have the capacity to make a decision about a sexual relationship.

For each scenario, the guidance outlines:

• considerations that staff should take into account – including legal and professional frameworks and guidance, and
• options for action, including sources of expert advice.

Where a course of action would break the law or breach the Nursing and Midwifery Council’s code of standard and ethics, this advice is highlighted in bold. Scenarios where staff should seek specific legal advice are also highlighted.

Related equality messages

The guidance outlines key provisions of the Equality Act 2006. However, this has been superseded by the Equality Act 2010. Readers seeking up-to-date guidance on anti-discrimination legislation should therefore consult more recent sources. See the Equality and Human Rights Commission’s guidance on the Equality Act 2010.

Other important information

Since this guidance was published, the Law Commission has recommended that Adult Safeguarding Boards be put on a statutory footing – a change which may form part of the forthcoming White Paper on adult social care.

The Guidance states that(i) ‘Care providers should always take their own legal advice on any action they propose to take in relation to a resident, as it may have implications under human rights law or other legislation’ (p.5) [our emphasis]. However, this may not be proportionate and in fact the guidance makes clear elsewhere that legal advice should be sought in specific circumstances, but not in relation to every decision.

Date of review

March 2012 

• Nursing and Midwifery Council (2008) The Code: standards of conduct, performance and ethics for nurses and midwives - http://www.nmc-uk.org/Nurses-and-midwives/The-code/The-code-in-full/
• Nursing and Midwifery Council (2009) Clear sexual boundaries - http://www.nmc-uk.org/Nurses-and-midwives/Advice-by-topic/A/Advice/Clear-sexual-boundaries/
• Nursing and Midwifery Council (2009) Guidance for the care of older people - http://www.nmc-uk.org/Documents/Guidance/Guidance-for-the-care-of-older-people.pdf.

We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.