Sexual violence in aged care

Older people’s freedom to expression of sexuality, access to services for sexual health needs and protection from sexual violence are undervalued and too often invisible (Kalra et al 2011). This is especially so for older people living in residential aged care services (Smith et al 2017). Aged care residents are at particular risk of sexual violence because of their physical frailty, cognitive impairments, multiple illnesses, and need for assistance with personal tasks (Smith et al 2017). In our opinion the Royal Commission into Aged Care Quality and Safety, the Federal Government, regulator and aged care approved providers should have been far more proactive in addressing this continuing human rights abuse.

What is sexual violence?

Unwanted sexual behaviour, or what’s commonly known as sexual violence, is any sexual activity (unlawful or unwelcome) that is non-consensual. Unwanted sexual behaviour between residents is undeniably complex, often involving victim-survivors and perpetrators-exhibitors with cognitive impairments; this can create difficulties with detecting, managing, and preventing harm (Smith et al 2017; Smith et al 2019).

In this context, perpetrators-exhibitors are residents who have, or are suspected of having, engaged in unwanted sexual behaviour. The presence of cognitive impairment in resident exhibitors creates uncertainty in determining the nature of the incident. It may be sexually ambiguous in nature (eg, disrobing), without any sexual arousal (eg, as a result of agitation), and/or deemed a non-criminal offence due to the lack of criminal intent. However, these complexities do not excuse the current approaches to prevention and management which remain reactive, slow, and incomplete.

The impact of sexual violence

Not all incidents that occur in aged care are sexually or criminally ambiguous and regardless of whether the resident acted with intent, aged care victim-survivors are likely to experience trauma and feel profoundly unsafe (Kevin et al 2021). However, data from the federally-funded KPMG report Prevalence Study for a Serious Incident Response Scheme (November 2019) suggests that victim-survivors are unlikely to be supported and remain at risk of further sexual violence (KPMG 2019) as referrals to external support services or agencies that have specialists and expertise in dementia care and/or sexual violence are not being used.

Perhaps most alarming is the aged care staff are misjudging the impact sexual violence has on survivors. Most staff in the KPMG study considered residents to have had “no or minor” physical or psychological impact after being raped or sexually assaulted. This contradicts research that highlights older survivors may suffer long-term serious mental and physical health problems following being sexually assaulted (Smith et al 2017).

Responding to sexual violence

The KPMG report also suggests perpetrators-exhibitors are not actively managed and may continue to cause harm as some aged care facilities reported multiple incidents, frequently involving the same resident exhibitor (*see footnote). This is unsurprising as there is a lack of evidence-based interventions for managing aged care resident-perpetrator-exhibitors.

Repeat incidents may also be due to the challenges staff face when attempting to distinguish between consensual vs non-consensual behaviours and/or the barriers cognitively impaired survivors face disclosing incidents. For example, residents with cognitive impairments who are targeted may lack the cognitive capacity to understand the nature of what is happening to them, to reject advances, or to communicate non-consent, therefore incidents that involve such residents may be inappropriately deemed as consensual by staff and other residents (Kevin et al 2021).

Indeed, aged care staff are aware they lack the requisite skills and expertise, often expressing concerns about the lack of adequate training about how to respond to the sexual health needs, or incidents of sexual violence (Smith et al 2021a).

Currently, there is not any mandatory education or training requirements for residential aged care services staff regarding unwanted sexual behaviour in Australia and limited, if any, available formally recognised training programs. The training that does exist only addresses how to fulfil the mandated reporting obligations required by the regulator, the Aged Care Quality and Safety Commission (Wright et al 2019).

It is therefore unsurprising that our research in the aged care sector uncovered evidence of multiple barriers to the detection of incidents of sexual violence, underreporting of incidents, inadequate responses to incidents and staff distress when managing incidents (Ibrahim et al 2020).

Freedom of Information data

In July 2021, we obtained data released under the Freedom of Information Act 1982 (Cth) about sexual violence in aged care. Nationally, there were a total of 5841 reportable sexual violence incidents between 2007-2020 under the previous compulsory reporting requirements to the Commonwealth Department of Health. This is in stark contrast to the much greater estimates of 50 sexual assaults per week (2500 per annum) from the Royal Commission Into Aged Care Quality and Safety (2019).

Disappointingly, the data we obtained revealed that basic information, such as survivor-perpetrator relationship, was not being reliably collected by the Department of Health. Even more concerning was the complete absence of data describing socio-demographic characteristics of resident survivors and alleged perpetrators (age, gender, medical and cognitive status), the number of repeat incidents and offenders, and important aged care facility characteristics (bed size, private, non-for-profit etc).

Serious Incident Response Scheme

The introduction of the Serious Incident Response Scheme (SIRS) on 1 April 2021 came with the promise to fix the known issues under the previous reporting scheme. Within one month of this new scheme, 149 ‘Priority 1’ unlawful or inappropriate sexual conduct incidents were reported. Survivors were disproportionately individuals with a cognitive impairment (139/149, 93% ‘Priority 1’ incidents). In 65% of cases perpetrators were another resident, with 18% of ‘Priority 1’ incidents alleged to involve a staff member, which is more common than previously estimated (Smith et al 2017). Information regarding perpetrator characteristics was not provided. It therefore remains unclear whether the relevant missing characteristics from 2007-2020 reporting scheme are now being collected under SIRS. This continued inadequate data collection makes it exceedingly and unnecessarily difficult to understand the true nature of this issue and how to effectively address it.

Need to do better

The Aged Care Royal Commission identified the lack of resident outcome data and an inadequately trained aged care workforce as major factors contributing to suboptimal care, neglect and abuse of residents (Australian Government 2020). None of the 148 recommendations made by the Aged Care Royal Commission were dedicated to improving the management or prevention of sexual violence in aged care (Australian Government 2020) despite receiving over 500 submissions advocating improvements.

Since the Aged Care Royal Commission, the Australian Government has vouched to create transparency and accountability within the aged car sector. However, the 2020-2021 annual report released recently by the Aged Care Quality and Safety Commission released provides no new insights into the number of reportable incidents relating to sexual violence and fails to detail how this data is being used to improve care (Australian Government 2021).

Effectively addressing and preventing sexual violence requires gathering detailed reliable and valid data to understand the scale and nature of this issue. The initial public reports from SIRS do not appear to have achieved this goal and continue more in the vein of the 2007-2020 reports. The mandatory minimum qualification requirements for aged care staff and a review of certificate-based courses do not include training or ask for competency with preventing and managing sexual violence. Recent research suggests aged care nurses also are not adequately aware of the issue and lack experience in incident management and reporting (Smith et al 2021a).

Challenges for the future

There are multiple challenges to addressing this issue, including overcoming the combined negative effects of ageism and sexism within society. By failing to recognise older adults’ sexual identity, we fail to acknowledge the potential for sexual violence.

Change starts at the facility level with training of staff to support and educate them in how to promote consensual sexual expression by people living in aged care homes. Being diagnosed with dementia or major neurocognitive disorder should not imply the cessation of sexuality in older adults (D’Cruz et al 2020), though aged care staff and family may conflate a diagnosis with loss of consent. People with dementia may retain capacity until moderate stages of disease severity (Oxford Textbook of Old Age Psychiatry 2013) and restricting healthy consensual sexual expression impedes on their human rights.

Therefore, part of the education process requires learning how to overcome the common practice of staff, as well as family desire, to prevent such consensual activity, especially for people with dementia. Without the knowledge of what constitutes non-consensual vs consensual sexual expression, or basic tools to promote healthy sexual expression by residents, it is not surprising that providers are inadequately equipped to manage and prevent sexual violence.

At the regulatory level, the SIRS requirement that staff assess incident seriousness and priority, as well as post-assault victim impact (Aged Care Quality and Safety Commission 2021), lacks a scientific basis. This creates a culture contrary to sexual violence best practice and places an onerous burden on staff who may also suffer moral distress. To suggest that anyone is able to judge the seriousness of incidents or the impact of sexual violence on another person is misguided and potentially unethical. The Government has remained silent on redressing this issue, despite vocal and repeated concerns by aged care advocates.

At a policy level, change is required to address whether it is possible and how to differentiate consensual and non-consensual sexual activity in this vulnerable population. In the absence of a harmonised definition of consent and capacity, criminal laws provide little guidance for facilities (Roelofs et al 2015). Incidents are often considered as medical or health-care related issues rather than a matter for the criminal justice system.

At the facility and policy level is the perennial challenge of how to manage situations where residents who are victim-survivors must continue to live in the same care home with resident perpetrators-exhibitors. Balancing the human and legal rights along with health and wellbeing of all concerned creates an ethical dilemma.

At the staff, facility, regulatory and policy level there is the challenge of improving training in the prevention and management of sexual violence for all who live in aged care. Training of board and executive, nursing, care staff, residents and families as well as the health professionals who visit aged care facilities is needed. Minimum mandatory training is crucial to strengthening the safety of older adults, and the first step is to develop and evaluate this training.

Our course: a first step to a solution

Our team at the Health, Law & Ageing Research Unit at Monash University has developed an e-training intervention – Preventing Unwanted Sexual Behaviour in Aged Care – specifically for aged care nurses to improve sexual violence incident detection and management. It aims to promote collaboration with expert dementia and sexual violence support services (Smith et al 2021b).

The content was developed with national and international best practice management of sexual violence (Office of the Public Advocate, online), and person-centred frameworks (WHO 2019), as is endorsed by the Australian College of Nursing for continued professional development.

Additionally, it provides guidance on the numerous challenges surrounding what constitutes sexual violence and reportable incidents. To our knowledge, this is the first evidence-based intervention in place to prevent or manage unwanted sexual behaviour in Australian aged care services and the most recent internationally.

The online course was evaluated from September to October 2020 (Smith et al 2021b). English-speaking Enrolled or Registered Nurses employed in an Australian residential aged care service were eligible to take part in the survey. Thirty-eight of 45 eligible participants (84.4%) responded. Participants reported better awareness, enhanced reflection on current personal and workplace practice and improvement in incident management. The majority said they found the training relevant, practical, and useful to people in their role.

These findings are important as relatively little information exists about the learning needs of this group, on this topic. The training therefore provides a model curriculum for future national and international initiatives, which may be completed flexibly in any facility at any time. Further, our findings highlight the feasibility of implementing a training program at a modest cost for aged care staff with many competing demands on their time.

Conclusion

Active, dedicated reforms to prevent sexual violence in all populations is required. An aged care staff education program rolled out nationally is now possible and would be a small step forward. Substantive and sustained education, research, service delivery and policy programs are needed. In our opinion these should be funded by the Australian Government, which must begin by listening to and acting on the advice from older survivors and topic experts. Everyone has a right to live free from violence and abuse, and this includes older people with dementia in aged care facilities.

*Footnote: This was asked about all incidents at an aggregate level and was not captured at an individual incident level. For example, if a service reported five incidents, the data collected cannot discern whether the same resident was involved in all five incidents or that the same resident was involved in two incidents and the remaining three incidents involved different residents. Data for this = 123/178 RACS providers reported two or more ‘Type 1’ incidents, of which 97/123 (78.9%) indicated the same resident was involved, whilst 60/178 (33.7%) reported seven or more incidents of which all involved the same resident.