Capacity to marry and to consent to sex in dementia
We were pleased to be joined by guests from the City and County of San Francisco’s Department of Aging and Adult Services, who provided institutional context for a discussion of challenges to the capacity of patients with dementia to marry and to consent to sex. We began by considering two cases from the UCSF Memory and Aging Center clinic and from the Care Ecosystem program, illustrating more general questions that commonly arise for clinicians and family members.
We reviewed a somewhat surprising (for some members) passage from the suggested reading:
In a California appellate case, the court opined that ‘[M]ental capacity can be measured on a sliding scale, with marital capacity requiring the least amount of capacity, followed by testamentary capacity, and on the high end of the scale is the mental capacity required to enter contracts.’
In our discussion, we examined potential conflicts between respect for patient’s privacy interests and the value of protecting patients from exploitation, the need for individualized consideration of patients’ different circumstances, and whether current debates over sexual norms focusing on young adults and college students can be applied to patients with dementia. Challenged by our other suggested reading, we considered whether in these patients, our focus should shift from consent capacity to a more difficult question of how to ascertain whether a patient is being abused.