Ask the Legal Expert... about relationships between residents

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John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

Family members are threatening to sue because their mother is carrying on a believed-to-be-sexual relationship with a gentleman who also lives at our facility. What's our recourse?

If the facility is not already aware of the relationship between the residents, it should investigate the matter under the guidance of counsel and subject to the attorney-client privilege, if possible.  Part of this investigation should include a review of the facility's sexual intimacy policies to determine whether staff are complying with the applicable policy guidance and to assess any potential liability for failure to do so. The facility's medical director and residents' treating physicians should be involved in determining whether these residents can consent to a sexual relationship.    

If the facility must contemplate terminating its agreements with one or both of the residents involved, the facility should ensure that actions taken are consistent with the residency agreement, as well as state and federal law (as applicable to the particular level of care).

If the residents remain at the facility, management should inform its staff that the threatened lawsuit and the facts surrounding the sexual relationship should not be discussed with the residents or their families without involving counsel. The facility should designate a point person to handle inquiries from staff and the residents' families. It also should issue a litigation hold on any documents related to treatment of the residents at issue and those discussing the sexual relationship so that no such documents are deleted or destroyed.

Finally, if it is determined that the situation involves abuse, the facility should ensure that it follows the reporting guidelines for its state and develops a plan to prevent a recurrence.