Case 34 ASISA

SEXUAL CONSENT AND COGNITIVE IMPAIRMENT
CLINICAL CASE
Belén is an 83-year-old woman admitted to the internal medicine ward for a urinary tract infection
with secondary acute confusional state. She is married, has two daughters, and has strong family
support. Most of the time she is accompanied by a family member; she is only left alone at night, as
her husband leaves after she has fallen asleep. Belén has been diagnosed with moderate cognitive
impairment.
Juanjo is another patient on the same ward. He is an 85-year-old widower with one son, a nurse at
another hospital, who is closely involved with his care. Juanjo resides in a long-term care facility in
the dependent patients unit due to Lewy body dementia with behavioral disturbances. He was
admitted for heart failure, which is now stabilized, and discharge is planned within 48–72 hours. On
the night in question, he was alone.
At around 2 a.m., noise is heard from Belén’s room at the nursing station. A nurse goes to
investigate and finds Juanjo and Belén engaged in sexual activity. The nurse separates the two
patients and escorts Juanjo back to his room. She notifies the on-call internist, Dr. Almansa, who
evaluates both patients and notes that they appear calm. When speaking with Belén about the
incident, she asks, “Why did they take my boyfriend away? Where is he now?” Dr. Almansa
continues to ask if she feels well or has any discomfort, and she repeatedly states that she feels fine
and does not know where her boyfriend has been taken. After the assessment, both patients fall
asleep and remain calm.
Dr. Almansa is left questioning whether he should treat the case as a possible sexual assault, given
that he cannot be certain the encounter was consensual. He wonders whether he would have been
alerted if the individuals involved were, for instance, a married couple. He also considers whether the
families should be informed of what happened.
ETHICAL ANALYSIS OF THE CASE
We are dealing with a sexual encounter between two patients whose capacity to give consent is
compromised due to cognitive impairment. The ethical values in conflict for Dr. Almansa are, on
one hand, the patients’ right to privacy and sexual autonomy, and on the other, the need to ensure
safety and protect vulnerability. Patients with cognitive impairment are particularly vulnerable due to
their dependence, fragility, and intellectual disability. The healthcare team’s objective must be to
promote their well-being, taking their vulnerability into account throughout the decision-making
process. This case involves two patients, and any action taken should aim to protect and care for
both.
If the physician believes that Juanjo has abused Belén, he must handle the situation as a case of
sexual assault, as this would constitute a criminal offense. Reporting the incident to the on-call legal
counsel would serve to protect Belén’s safety and vulnerability. However, he is not convinced that
this was an assault, as he considers that despite Belén’s dementia—the interaction appeared
consensual on both sides. If he chooses not to report the incident, he would be preserving the
privacy and sexual freedom of both patients. Patients with intellectual disabilities, even if not fully
autonomous, still retain a degree of freedom in making personal decisions.
Another question that arises is whether the families should be informed. Is it appropriate to tell
them what happened, or is it better to protect the confidentiality of Belén and Juanjo?
POSSIBLE COURSES OF ACTION
Since both patients are calm, no further action is necessary. There is no need to inform the
families, as sexual relationships are private and intimate matters.
Reassess both patients the following morning, both psychological and physical evaluations.
Additionally, assess their capacity specifically in relation to engaging in sexual activity.
Notify Belén’s husband and Juanjo’s son first thing in the morning, ask them to come to the
hospital, and inform them of what happened.
Contact the long-term care facility to gather background information on Juanjo and inform the
institution of the events that took place.
If there is any suspicion of sexual assault, perform a physical examination of Belén to determine
whether there are injuries and to what extent. Request a consultation with the gynecology
department to assist in decision-making
Transfer Juanjo to a different area of the hospital until he is discharged. In the meantime,
maintain supervision of both patients to prevent further sexual encounters.
Speak with Belén and Juanjo to explain that the hospital is not an appropriate setting for
intimate relationships.
Immediately notify the on-call legal counsel to activate the sexual assault protocol.
Inform Belén’s husband that he should file a report if he deems it necessary.
Let the hospital’s security team know the situation so they can monitor the patients and ensure
neither of them leaves their room until their families arrive.
RECOMMENDED COURSE OF ACTION
Given that both patients have cognitive impairment and dementia, albeit at different levels, and
that Belén has also been in a confusional state, their capacity to engage in sexual activity must be
assessed. If they are deemed not competent to consent (which is likely), their respective family
members, as legal representatives of Belén and Juanjo, must be notified.
In any case, patients with disabilities must be informed and involved, to the extent possible, in
decisions that affect them. Therefore, it is necessary to speak with both Belén and Juanjo. They
should be told that the hospital is not an appropriate place for intimate relationships.
If Belén is found not to have the capacity to consent to sexual activity under current conditions,
the situation must be managed as a potential crime against sexual freedom. If that is the case, the
following steps must be taken:
o Request a consultation with the gynecology department;
o Notify the on-call legal counsel
o Activate the institution ‘s sexual assault protocol. The examination will be performed
in coordination with the forensic physician and the gynecology team. Throughout
the process, the procedures should be explained to Belén in the clearest and most
accessible language possible. Her informed consent must be obtained for the
gynecological examination. If she refuses to allow sample collection, she must not be
forced to undergo it.
Belén’s husband may choose whether or not to file a formal complaint; however, if Belén is not
competent to consent to sexual activity, the clinical and forensic response must proceed
independently of her husband’s decision to press charges.
It would be prudent to transfer Juanjo to another area of the hospital to prevent further contact
with Belén. Until that transfer is arranged, both patients should be closely monitored and
supervised to ensure that no further sexual encounters occur.
DISCUSSION
Sexuality in individuals with cognitive impairment is a topic that remains under-researched and,
according to some, continues to be a social taboo. It is important to recognize that many people
with intellectual disabilities whether due to dementia or other conditions such as Down syndrome
may have an active sexual life. In such cases, the central issue is determining whether they are free
and competent to engage in sexual activity.
There is no universal “formula” for managing these situations; each case must be assessed
individually. If there is any suspicion that one of the individuals involved is participating against their
will, or if there are doubts about their capacity and, by extension, their autonomy, appropriate
measures must be taken. These include preventing abuse and non-consensual encounters, and, when
necessary, reporting a potential assault. However, it is also possible for individuals with cognitive
impairment to give consent and derive enjoyment from sexual activity, as documented in studies
involving people with both congenital and acquired intellectual disabilities, including cases like the
one presented here.
Neither healthcare professionals nor the hospital as an institution should impose moral judgments
on patients. Their role must be to safeguard patient privacy and autonomy, prevent and respond to
any possible abuse, and, ultimately, ensure the well-being of those under their care.
Sgd: Bioethics and Health Law Committee of ASISA-Lavinia
July, 2025