Obtaining the patient's consent is usually a prerequisite of any clinical intervention. However, some cognitively impaired patients may not be able to give valid consent. Following years of consultation and legislative review, the Mental Capacity Act 2005 (MCA) provides a statutory framework of 'best interests' decision-making on behalf of incapacitated individuals. However, confusion over the meaning and application of the 'best interests' standard persists. This paper explores the variation in judicial interpretation of the standard and the complexities of best interests decision-making in clinical practice. Prevailing confusion and risk-aversive practices mean that the rights and interests of cognitively impaired individuals continue to be compromised, with evidence to suggest that 'best interests' may be conflated with the clinician's evaluation of 'best medical interests'.
Keywords: Assessing capacity; Autonomy; Best interests; Cognitive impairment; Mental Capacity Act 2005; Presumption of capacity.
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