Sexual abuse of the elderly is as real a problem in nursing home facilities as bed sores, falls, malnutrition, dehydration, and other commonly discussed injuries. Although it may seem difficult at times to quantify the harm caused to an elderly nursing home resident as there is often no evidence of physical injuries make no mistake – the harm is real. If your elderly loved one has suffered sexual abuse in a nursing by staff or other residents, call our Hamilton Personal Injury Lawyers today at 905-333-8888 or fill in a contact form for your free consultation.
Within the elder abuse context, sexual abuse in nursing homes is a hidden problem because it too often goes undetected and under-reported. Often times, residents who suffer strokes or other medical conditions which cause them to lose speech or motor skills make it very difficult to report abuse. For example, cognitively impaired residents are often unable to describe assault events, the fears or the feelings of helplessness that they feel. Warning signs of sexual abuse of your loved one, as reported by various physicians and experts can include:
There is no doubt that a nursing home for seniors home must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident who lives there. Most nursing homes have a duty to develop and implement written policies that prohibit mistreatment, neglect and abuse of residents and misappropriation of resident property. Any policies written policies have to be effective and put into action. Courts have found in the past that although facilities have had policies and procedures in place to prohibit sexual abuse, such policies were often not effective because of the lack of reporting by employees when the abuse occurred. In Ontario, facilities are required to report all violations of patient and resident abuse, including mistreatment, neglect or abuse, including injuries of unknown source.
Nursing homes in Ontario can be vicariously liable for the actions of its employees – meaning they can be held responsible for the negligent actions of it’s employees. Nursing homes in Ontario can also be the vicariously liable for the actions of other residents who sexually abuse a resident if the abuse can be proven. Nursing homes in Ontario can also be vicariously liable for independent contractors negligence. Nursing homes should no doubt take special precautions to limit liability for physical harm caused to residents by the failure of contractors to exercise reasonable care and abuse of residents.
It’s important that everyone hired by a nursing home be properly screened for any type of history of violent or aggressive behaviour toward staff or other residents, inappropriate verbal communication, allegations or charges of inappropriate sexual behavior, and of course, criminal checks. If homes do not under negligence may be argued in the context of negligent hiring of employees and independent contractors by the nursing home.
Negligent hiring occurs when the employer fails to adequately evaluate a potential nurding home candidate who, after hire, injures a third party such as an elderly resident. If the potential risk of harm to a third party could have been identified during a proper and thorough reference check, the employer nursing home may face liability for the third-party injury.
Nursing homes have a responsibility to provide a level of reasonable care to protect residents and provide them with a safe environment, if not, they can be found negligent and liable for damages.
In order to establish negligence against a nursing home, we as your lawyers must look into whether or not there was a duty of care owed to your loved one. There’s no doubt that in a nursing home- resident relationship, nursing homes have a positive responsibility to provide residents with care and provide them with a safe environment. This means that the nursing home facilities have a duty to take reasonable steps to prevent abusive acts.
Once a duty of care is determined, there must be a breach of that duty of care between the nursing home and your loved one in order for negligence to be found, a Court must then determine what the defendant nursing facility should have or could have done to protect the resident which is a question of fact.
Lastly, there must be injury or damage to the plaintiff resident in order to prove negligence. Injury can be in the form of physical injuries, or mental suffering. Our Supreme Court has made it clear that expert evidence is not required to prove the mental injury. A judge or jury can still use other evidence to determine if the plaintiff has in fact suffered mental injury as a result of the negligent act – and such evidence is weighed on a balance of probabilities.
Often-times sexual abuse of a nursing home resident is alleged to have been committed by other residents. In this type of situation, insurers or the Province commonly argue that the sexual relationship between residents was consensual. However, a problem occurs when the question of capacity of resident becomes an issue. For example, did your loved one have the capacity to consent to the nature of sexual conduct? Typically, consent is established with mere proof that the victim understood the sexual nature of the act and voluntarily decided to participate in the sexual conduct however, people that are physically helpless, mentally incapacitated, suffered from a mental health issue or any other issue that rendered them temporarily or permanently incapable of making decisions will not be found to have provided consent to the sexual relationship.
The allegations of sexual abuse of a nursing home resident who suffers from Alzheimer’s disease can become quite complicated. There are over half 1 million Canadians and 4 million Americans living with Alzheimer’s disease. Alzheimer’s disease is divided into seven stages and a person with Alzheimer’s disease suffers from a decline in cognitive and physical abilities throughout the seven stages. At the seventh stage, individuals with Alzheimer’s lose the ability to speak and control movement. Ontario Nursing homes should no doubt have implemented policies to protect residents from unwanted sexual contact. Therefore, negligence may be found if a facility has not followed its own policies and procedures or implemented correct written policies to protect the vulnerable class.
Similarly, dementia results in residents suffering from impaired memories, communication difficulties, and are limited in their ability to make rational decisions.  Residents with dementia may in fact lack the legal capacity to consent to engage in sexual relations and if they do give consent, difficulties interpreting a resident’s true intentions arise given that residents with dementia often feel disorientated, suffer memory loss and a limited ability to communicate feelings and concerns which make it difficult to determine whether or not a a resident is actually consented the sexual relations, or is being abused.
Ontario nursing homes are legally required to provide a safe and nonabusive facilities to its residents. There’s no doubt that this will become more and more difficult as nursing homes will be forced to handle and accommodate baby boomers in the next several years. However, and equally as important, nursing homes will also be forced to handle and accommodate the elderly’s consensual sex lives as more and more patients get admitted over the next several years. With the elderly, comes diminished physical and mental capabilities, so where is the line drawn between consensual sexual activity while exercising one’s right to intimacy and nonconsensual sex due to an elderly resident’s inability to consent due to diminished capacity?
All in all, we do know that sexual abuse in nursing homes are the least detected, the least reported and the least acknowledged types of sexual abuse, making lawsuits alleging sexual abuse and a nursing home quite difficult. If your elderly loved one has been sexually abused in a nursing home – the best type of evidence, as difficult as it sounds, is video evidence. Video evidence can not only prove nursing home sexual abuse, but also physical abuse, emotional abuse, neglect, confinement, deprivation of medicine and food and the non-interference with self neglect and the failure to provide day-to-day needs. Consider when the CBC referred to nursing home footage in Ontario as a “horror movie”. A nursing home resident died in hospital for days after breaking his hip in a nursing home. Baycrest nursing home and reported that the man had fallen twice, when video evidence showed nursing home employees shoving the elderly man to the ground, and throwing a chair at him. In today’s day and age, one can easily buy small video cameras on Amazon.ca, such as this clock/video camera and record video footage of presumed abuse.
If you believe your loved one has been sexually abused in a nursing home, by employees or other residents, please call us at 905-333-8888 or fill in a contact form to discuss your situation. All our consultations are free and we never charge money upfront.
 Sexual Abuse in Nursing Homes, CONSUMER JUSTICE GROUP (2015), www.consumerjusticegroup.com/nursing-home-abuse/sexualabuse/; Nursing Home Rape or Assault, BROWN WHARTON & BROS. (2015), www.medmalfirm.com/resources/informative-materials/nursinghome-rape-or-assault/.
 Evelyn M. Tenenbaum, To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex, and Adultery, 42 IND. L. REV. 675, 686 (2009)
 Id. At 678