Consent,capacity,and client sexuality policies in healthcare

Introduction

Healthcare organizations face significant ethical complexity when developing policies related to the sexual activities of clients within their facilities. On one hand, admission to healthcare facilities should not require clients to abstain from all sexual activity. On the other hand, clients’ sexual activities within facilities have implications for other people, and many clients may be at risk of sexual mistreatment. In response to this complexity, organizations may be tempted to approach their clients’ decisions about sexual activity on the model of decisions about medical treatment. In this article, we argue that this approach is more ethically problematic than it may first appear.

The policy issue: Client sexual activity in healthcare facilities

In any healthcare facility in which clients may be admitted and remain for extended stays, it is likely that some clients will engage in sexual activity. ¹ Some may do this on their own, some may do so with other clients, and some may do so with sexual partners visiting the facility. ² This kind of activity within healthcare facilities tends not to be a focus of public conversation about ethical issues in healthcare. ³ However, given the important place of sexuality in many people’s lives, it is unreasonable to expect clients to suspend all sexual activity for the duration of their admissions to healthcare facilities; indeed, healthcare organizations should recognize a right of clients to engage in consensual sexual activity.

While clients have rights with respect to sexual activity, this does not mean that “anything goes.” As is the case outside the context of healthcare facilities, there are ethical constraints on where, when, how, and with whom clients within facilities may engage in sexual activity. ⁴ Further, there may be particular ethical constraints rooted in the character of healthcare facilities as semi-public spaces where clients co-exist with other clients and with organizational personnel. Additionally, healthcare organizations have ethical obligations to provide safe environments for their clients, and to protect them from at least certain types of harm related to sexual activity. Accordingly, healthcare organizations need clear policies regarding how they will accommodate, manage, and respond to the sexual activities of clients admitted to their facilities.

Our central focus in this article is on a particular issue that can arise for organizations trying to develop such policies in a way that will protect clients who may be at risk of sexual exploitation. To achieve this aim, many organizations will be tempted to take the ethical and conceptual tools associated with standards for consent in healthcare settings and apply them to the context of sexual activity involving clients. ⁵ On this approach, the organization treats clients’ decisions about sexual activity on the model of decisions about medical treatment; clinicians are directed to assess clients for the capacity to make decisions about sexual activities, and those who are judged to be incapable with respect to those decisions have the decisions taken out of their hands. As one recent article approvingly describes this general approach, the capacity to make decisions relating to sexual activity can be “assumed to be similar to the capacity for deciding on medical treatments and [can be] assessed as such[.]” ⁶

On the face of it, this approach may seem innocuous. After all, just like in the domain of medical treatment, capable consent is crucial to the ethics of sexual interactions. ⁷ It may seem, therefore, that focusing on consent and capacity in relation to sexual activity is a good way for healthcare policies to ensure respect for clients’ autonomy while also protecting vulnerable clients, just as it is in the context of medical treatment. However, there are significant problems with this approach.

Asymmetries: Consent, capacity, medical treatment, and sexual activity

The primary ethical reasons to be interested in consent relate to the value of personal autonomy, and, accordingly, the right to bodily integrity. In the healthcare context, clinicians ought to obtain informed consent before administering medical treatment because not to do so would involve unlicensed violation of the client’s bodily integrity. Other things being equal, the bodily interventions ⁸ involved in medical treatment can be justified only by the autonomously given permission of the proposed subjects of treatment.

The ethical significance of decisional capacity is linked to autonomy as well. To be valid, consent to treatment must come from someone who is capable of giving it. A person is said to be capable of giving or refusing consent to a proposed treatment if and only if she is able to understand and appreciate the information that is relevant to deciding whether to consent; a person who either cannot understand or cannot appreciate that information is said to be incapable with respect to the decision. ⁹ A person must be capable before making her own treatment decisions because, without being able to understand and appreciate relevant and pedagogical information, she is not in a position to meaningfully evaluate her options. Accordingly, any decision she might make about the proposed treatment will, in a sense, fail to be a true expression of her own autonomous judgement.

Generally, then, ethical requirements related to consent and capacity in healthcare flow from the importance of respect for clients’ personal autonomy. Legal systems, and the health systems within them, express respect for autonomy by requiring clinicians to assess the capacity of clients for whom they are proposing medical treatments, to obtain consent from clients when they are capable, or from the designated substitute decision-makers of incapable clients. This basic ethical picture is widely recognized in health law across many jurisdictions, including in Canada.

As in the context of medical decision-making, consent and capacity are crucial to the ethics of sexual activity, and there are many parallels between the roles played by consent and capacity in each domain. Just as clinicians should not administer medical treatment without capable consent, no one should engage in sexual activity without the capable consent of their partner(s). ¹⁰ Further, the ethical significance of consent and capacity in the context of sexual interactions is rooted in the importance of respect for personal autonomy and bodily integrity: sex without consent is so terrible precisely because it overrides the non-consenting person’s right to autonomous control over her body.

Despite these parallels, however, there are important asymmetries between the two domains. Perhaps most saliently, there is no reason to expect that standards of capacity for decisions about medical treatment will be the same as (or even substantially similar to) those for decision-making about sexual activities. Crucially, the types of information that are relevant to decisions about treatment are likely to differ significantly from those which are relevant to decisions about sexual activity. Equally significantly, the relationships between the parties to decisions about medical treatments differ radically from those at play in decisions in the sexual domain. In the treatment context, the central relationship is that between a client in need of healthcare and an expert practitioner, acting in a professional role, with a fiduciary duty to that client; it is the role of the practitioner to exercise professional judgement to identify and propose only treatments that would be medically beneficial to the client, and it is the role of the capable client to give or refuse consent to those proposals.

By contrast, in the case of sexual activity, the fundamental relationship is between private individuals, none of whom bring any professional expertise, authority, or responsibility to the relationship; all parties to the relationship may propose sexual interaction, proposals need not be aimed at benefitting any party to the relationship, and all parties must consent to all interactions. It is also notable that, whereas substitute consent may justify the administration of medical treatment to a person who is incapable of consenting to the treatment, substitute consent cannot license sexual interactions with a person who cannot consent to those interactions for themselves.

Ethical issues

The asymmetries above highlight a range of ethical issues associated with attempts to apply the consent-and-capacity apparatus of medical decision-making to the context of client sexual activity. In the treatment context, there is a strong rationale for tasking the proposing clinician with the responsibility to assess the client’s capacity and with obtaining consent from the client, if capable. The rationale rests on the clinician’s role as an expert care provider with a fiduciary duty to the client. As a healthcare provider to the client, it is the clinician who proposes to administer the recommended treatment, ¹¹ and it is therefore the clinician who must, in essence, ask the client’s permission to move forward. Further, as a trained professional in the applicable health discipline, the clinician has expert knowledge of the information that is relevant to the treatment decision, and this puts the clinician in a strong position to assess the client’s ability to understand and appreciate that information.

None of this applies in the case of the sexual activities of clients. There is no general reason to treat clinicians as having any role at all in their clients’ decisions about sexual activity. As we noted above, the primary parties to a sexual interaction are its participants; proposals and consent to sexual activities are properly exchanged between prospective participants. From an ethical perspective, because the clinician is not a participant in the sexual activities of her clients, ¹² she has no essential role in decisions about those activities. Accordingly, a policy that requires clinicians to make putative findings of capacity to consent to sexual activities wrongly interjects the clinician as an essential participant in decisions that, in typical circumstances, properly belong only to the client and her potential sexual partners.

Further, even if it were appropriate to assign clinicians some role in clients’ decisions about sexual activity, there would be a significant ethical problem with a policy that purports to establish clinicians as capacity assessors in this context. While clinicians’ expertise makes them well-suited to assess capacity with respect to treatments they propose, clinicians have no claim to expertise with respect to the information that is relevant to their clients’ decisions about sexual activity. Of course, for some decisions related to sexual activity, there are health-related considerations that, in some sense, ought to be taken into account. ¹³ However, decisions related to sexual activity are not, in any general sense, decisions about medical treatment or about healthcare more broadly. There is thus no good reason to expect that clinicians qua clinicians are equipped to assess their clients’ capacity to make decisions related to sexual activity, and it would be wrong to impose such assessments on clients as a matter of policy.

This problem is compounded by differences in the legal frameworks governing matters related to consent and capacity for healthcare decisions and sexual decision-making, respectively. We gestured above at the underlying moral differences between the two decisional contexts. But it is also important to recognize that those moral differences tend to be reflected in considerably different legal structures. While the details vary, many jurisdictions assign clinicians clear legal responsibility for assessing clients’ capacity for treatment-related decisions and obtaining consent, and they establish oversight processes to ensure that clients’ rights are protected. For example, in the jurisdiction where we practice as ethicists, ¹⁴ provincial legislation empowers clinicians to make legally recognized findings of capacity related to treatment decisions, but it also gives clients the right to have those findings reviewed by an independent adjudicative tribunal. Whatever the faults of such a system, it goes some way towards ensuring substantive and procedural fairness in matters related to consent and capacity in the treatment domain.

However, in the same jurisdiction, clinicians have no direct role to play in the legal structures governing sexual activity. In Canada, a putative violation of the requirement that sexual activity be the product of mutual capable consent is a matter governed by the Criminal Code. ¹⁵ Federal, provincial, and local apparatuses of criminal justice are responsible for enforcement of the Criminal Code. Clinicians and healthcare facilities have no immediate role to play in the criminal justice system, including in the legal determination of a person’s capacity to participate in consensual sexual activities. A policy of conducting capacity assessments regarding a client’s sexual behaviour risks improperly inserting the clinician into criminal justice matters while illegitimately abridging the rights of the clients under her care.

We are not here arguing that clinicians and healthcare facilities may or should do nothing to prevent harm from befalling their clients who are at risk. Instead, we are emphasizing that one popular strategy for protecting clients from harm—the conducting of pseudo-assessments concerning capacity to consent to participation in sexual activity—is flawed. This strategy misunderstands the role of the clinician in typical healthcare-related capacity assessments, places the clinician far outside her appropriate scope of practice, elides the distinction between different domains of law and, in the process, risks abridging the rights of the clients the strategy aims to protect.

Protecting clients from sexual exploitation and similar sexual harms

Our argument above is compatible with recognizing that clinicians and facilities may have strong reasons to be concerned with the sexual activities and experiences of some of their clients. Indeed, clinicians may have reasons for concern regarding many areas of their clients’ lives: the use of illicit substances; participation in dangerous recreational activities; involvement in known cults, other predatory communities, or toxic relationships; misuse of economic resources; habits concerning diet and exercise; and so forth. In all of these domains, a person's diminished cognitive or decisional powers (or, indeed, poor judgement alone) may put them at increased risk of harm and generate new ways in which they might be harmed.

A client’s presence in a healthcare facility increases the ethical complexity of these matters, since clinicians and organizations have obligations to protect clients within their care. Indeed, by recommending and authorizing admission to their facilities, clinicians and organizations take on special duties of care and protection for clients throughout admission, and those duties go beyond foundational professional responsibilities to provide competent healthcare. They require clinicians and organizations to take proactive measures to ensure that certain kinds of harm do not befall clients within their facilities and to arrange the environment, culture, and practices of facilities in ways that conduce to the general health and safety of clients. These broad duties of care and protection are part of the ethical rationale for such common-place rules in healthcare as anti-smoking policies and policies prohibiting verbal abuse and harassment. Those duties are especially urgent in the case of clients who may be vulnerable due to cognitive impairment or other factors.

In light of these special duties of care, and with respect to any of the areas of life mentioned above, there may be circumstances in which a clinician or organization has grounds for concern sufficient to warrant their intervention into a client's life, even if the intervention may be unwelcome. For example, a clinician may rightly engage a client in conversation about the harmful effects of a particular illicit substance, and an organization may legitimately prohibit such substances within its facilities if their presence endangers clients. Likewise, upon observing signs that a client may be at risk of physical or financial abuse by an intimate partner or family member, a clinician would be justified in discussing the issue with the client and recommending potential strategies for addressing the abuse. Similarly, in extreme circumstances, in order to protect the same client, an organization may be justified in prohibiting the abusive person from attending its facility or by contacting relevant legal authorities within the jurisdiction. In both cases, the interventions may be unwelcome by the client, and the interventions may interfere with the client’s own decisions in various ways. But they may nevertheless be justifiable in the context of the clinician’s and organization’s special obligations with respect to clients admitted to their care.

Clients’ sexual activity is best addressed on the model of the sorts of cases considered above, rather than using the consent-and-capacity framework of medical decision-making. Sexual activity is an area of clients' lives about which clinicians and organizations may have legitimate concerns in certain cases. Clinicians should be attuned to the possibility that some clients will be at risk of sexual exploitation and harm related to their decisions about sexual activity, and organizations should adopt policies to support clinicians in this regard. But, as in the other areas of life considered above, there can be no single, precise algorithm for responding to concerns about clients’ sexual activities within facilities. Instead, policies in this area should emphasize attentiveness to case-specific details, engagement with clients, and the importance of leveraging the experience and judgement of interdisciplinary clinical teams.

At the limit, there may be circumstances in which a clinician or facility should prevent a client from engaging in sexual activity with another person within the facility. Various processes and resources might be marshalled in determining when and how intervention is justified; to name only a few examples: privacy policies dealing with clients’ control over their sex-related personal health information; violence- and assault-prevention policies; clinical ethics consultations or committees; the development of client-led bodies responsible for promoting clients’ rights; referral to local authorities with jurisdiction over investigations concerning vulnerable citizens and state guardianship; and where necessary, the involvement of the police. There are innumerable practicable and ethically legitimate strategies which, taken together, may comprise a comprehensive approach to client sexual safety and well-being in residential facilities. Our point is simply that concerns about clients at risk of harm in relation to sexual activity should not be addressed by establishing policies that direct clinicians to become involved in dubious assessments of capacity to consent to sexual activity.

Conclusion

The context of client sexuality policies is just one example of a wider phenomenon in healthcare whereby conceptual and ethical apparatuses related to consent and capacity, designed for the context of decision-making about specific healthcare-related proposals from clinicians, are wrongly applied to other contexts which are superficially morally similar. To be clear, our point is not that consent and capacity are unimportant in the context of sexual activities among people admitted to healthcare facilities; indeed, consent and capacity are crucial to the ethics of those activities. Our argument has merely been that because of differences in the underlying moral considerations in the two domains, healthcare organizations should resist the temptation to apply their healthcare-related consent-and-capacity frameworks to the sexual activities of their clients. Although that approach may look like an easy solution to the policy issue presented by clients’ sexual activities in healthcare facilities, it ultimately fails to show proper respect for clients’ personal autonomy, and it wrongly requires clinicians to go beyond their proper scope of practice.