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Managing sexually aggressive behaviour in nursing homes - the legal considerations

By Julie McStay17 Dec 2010

Effectively managing sexual aggression by residents in aged care facilities involves complex and challenging issues for approved providers as it involves balancing a number of competing ethical and legal considerations.

Sexual aggression is defined as sexual interaction between two residents where at least one of the residents would be likely to construe as unwelcome. The issues associated with sexual aggression are relevant in an aged care setting in the context of persons with dementia or other cognitive impairments. Dementia or other cognitive impairments may affect a resident’s ability to consent to sexual activity and may affect a resident’s ability to judge whether the other resident consents to the activity.

Approved providers have obligations to protect their residents (and particularly residents who lack capacity to consent) from the sexually aggressive behaviour of other residents. Approved providers not only owe obligations to the resident who might be the victim of an incident of unwanted sexual aggression, they also owe obligations to the resident who might be the aggressor. 

This article does not attempt to address the complex clinical issues associated with providing care to residents with cognitive impairment who exhibit sexually aggressive behaviours but rather, outline some legal considerations an approved provider might take into account in relation to managing sexually aggressive behaviour including:

  • how to meet the obligations and duties owed to residents;
  • how to ensure personal information with respect to sexually aggressive behaviour is obtained, disclosed and maintained in accordance with relevant privacy legislation; and
  • complying with the compulsory reporting obligations under the Aged Care Act 1997 (Cth).

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