[ Search ] [ Legislation ] [ Bill Summary ]
[ Home ] [ Back ] [ Bottom ]
90_SB1035
405 ILCS 5/2-102 from Ch. 91 1/2, par. 2-102
405 ILCS 5/2-107.1 from Ch. 91 1/2, par. 2-107.1
405 ILCS 5/2-110 from Ch. 91 1/2, par. 2-110
405 ILCS 5/2-110.1 new
405 ILCS 5/2-110.2 new
405 ILCS 5/2-110.3 new
405 ILCS 5/2-110.4 new
405 ILCS 5/3-209 from Ch. 91 1/2, par. 3-209
405 ILCS 5/3-800 from Ch. 91 1/2, par. 3-800
405 ILCS 5/3-814 from Ch. 91 1/2, par. 3-814
405 ILCS 5/3-814.1
740 ILCS 110/2 from Ch. 91 1/2, par. 802
740 ILCS 110/4 from Ch. 91 1/2, par. 804
740 ILCS 110/11 from Ch. 91 1/2, par. 811
Amends the Mental Health and Developmental Disabilities
Code and the Mental Health and Developmental Disabilities
Confidentiality Act. Adds procedures that must be followed
before psychotropic medication or electro-convulsive therapy
is administered, including a court hearing. Provides for
registration of electro-convulsive therapy equipment with the
Department of Public Health. Requires reports from
facilities and physicians administering electro-convulsive
therapy or other convulsive or coma-producing therapy.
Provides that court hearings shall be open to the press and
public unless the respondent or some other party requests
that they be closed. Provides for a court appointment of a
temporary and limited surrogate decision maker to consent to
mental health and other services for a seriously mentally ill
person who lacks the capacity to make a reasoned decision
about necessary services. Makes other changes.
LRB9002676DJccA
LRB9002676DJccA
1 AN ACT concerning mental health services, amending named
2 Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Mental Health and Developmental
6 Disabilities Code is amended by changing Sections 2-102,
7 2-107.1, 2-110, 3-209, 3-800, 3-814, and 3-814.1 and by
8 adding Sections 2-110.1, 2-110.2, 2-110.3, and 2-110.4 as
9 follows:
10 (405 ILCS 5/2-102) (from Ch. 91 1/2, par. 2-102)
11 Sec. 2-102. (a) A recipient of services shall be
12 provided with adequate and humane care and services in the
13 least restrictive environment, pursuant to an individual
14 services plan, which shall be formulated and periodically
15 reviewed with the participation of the recipient to the
16 extent feasible and, where appropriate, such recipient's
17 nearest of kin or guardian.
18 (a-5) If the services include the administration of
19 psychotropic medication or electro-convulsive therapy, the
20 physician shall advise the recipient, in writing, of the side
21 effects and risks of the treatment and alternatives to the
22 proposed treatment, and the risks and benefits thereof,
23 medication to the extent such advice is consistent with the
24 nature and frequency of the side effects and the recipient's
25 ability to understand the information communicated. The
26 physician shall determine in writing whether the recipient
27 has the capacity to make a reasoned decision about the
28 treatment. If the recipient lacks the capacity to make a
29 reasoned decision about the treatment, the treatment may be
30 administered only pursuant to the provisions of sections
31 2-107, 2-107.1, 2-110.1, or 3-814.1 or pursuant to the terms
-2- LRB9002676DJccA
1 of a power of attorney for health care executed in compliance
2 with the Powers of Attorney for Health Care Law or a
3 declaration for mental health treatment executed in
4 compliance with the Mental Health Treatment Preference
5 Declaration Act. If the recipient is under guardianship and
6 the guardian is authorized to consent to the administration
7 of psychotropic medication pursuant to subsection (c) of
8 Section 2-107.1 of this Code because the recipient does not
9 object to the administration of the medication, the physician
10 shall advise the guardian in writing of the side effects and
11 risks of the treatment, alternatives to the proposed
12 treatment, and the risks and benefits of the treatment. Any
13 recipient who is a resident of a mental health or
14 developmental disabilities facility shall be advised in
15 writing of his right to refuse such services pursuant to
16 Section 2-107 of this Code. A qualified professional shall
17 be responsible for overseeing the implementation of such
18 plan. Such care and treatment shall include the regular use
19 of sign language for any hearing impaired individual for whom
20 sign language is a primary mode of communication.
21 (b) A recipient of services who is an adherent or a
22 member of any well-recognized religious denomination, the
23 principles and tenets of which teach reliance upon services
24 by spiritual means through prayer alone for healing by a duly
25 accredited practitioner thereof, shall have the right to
26 choose such services. The parent or guardian of a recipient
27 of services who is a minor, or a guardian of a recipient of
28 services who is not a minor, shall have the right to choose
29 services by spiritual means through prayer for the recipient
30 of services.
31 (Source: P.A. 86-1402.)
32 (405 ILCS 5/2-107.1) (from Ch. 91 1/2, par. 2-107.1)
33 Sec. 2-107.1. Administration of psychotropic medication
-3- LRB9002676DJccA
1 upon application to a court.
2 (a) Notwithstanding the provisions of Section 2-107 of
3 this Code Act, psychotropic medication may be administered to
4 an adult recipient of services without the informed consent
5 of the recipient against his will under the following
6 standards:
7 (1) Any person 18 years of age or older, including
8 any guardian, may petition the circuit court for an order
9 authorizing the administration of psychotropic medication
10 to a recipient of services. The petition shall state that
11 the petitioner has made a good faith attempt to determine
12 whether the recipient has executed a power of attorney
13 for health care under the Powers of Attorney for Health
14 Care Law or a declaration for mental health treatment
15 under the Mental Health Treatment Preference Declaration
16 Act and to obtain copies of these instruments if they
17 exist. If either of the above-named instruments is
18 available to the petitioner, the instrument shall be
19 attached to the petition as an exhibit. The petitioner
20 shall deliver a copy of the petition, and notice of the
21 time and place of the hearing, to the respondent, his or
22 her attorney, an agent or attorney-in-fact, if any, and
23 the guardian, if any, no later than 10 days prior to the
24 date of the hearing. The petition may include a request
25 that the court authorize such testing and procedures as
26 may be essential for the safe and effective
27 administration of the psychotropic medication sought to
28 be administered, but only where the petition sets forth
29 the specific testing and procedures sought to be
30 administered.
31 (2) The court shall hold a hearing within 14 days
32 of the filing of the petition. Continuances totaling not
33 more than 14 days may be granted to the recipient upon a
34 showing that the continuances are needed in order to
-4- LRB9002676DJccA
1 prepare adequately for a hearing under this Section. The
2 court may, in its discretion, grant additional
3 continuances if agreed to by all parties. The hearing
4 shall be separate from a judicial proceeding held to
5 determine whether a person is subject to involuntary
6 admission.
7 (3) Unless otherwise provided herein, the
8 procedures set forth in Article VIII of Chapter 3 of this
9 Act, including the provisions regarding appointment of
10 counsel, shall govern hearings held under this subsection
11 (a).
12 (4) Psychotropic medication shall not be
13 administered to the recipient unless, based upon clear
14 and convincing evidence, the court finds that the
15 recipient lacks the capacity to make a reasoned decision
16 about the medication. The fact that the recipient is
17 opposed to the medication is not sufficient evidence, in
18 and of itself, to establish that the recipient lacks the
19 capacity to make a reasoned decision about the
20 medication. If, and only if, the court finds a lack of
21 capacity to make a reasoned decision, the court may grant
22 the petition only if it also determines it has been
23 determined by clear and convincing evidence that all of
24 the following factors are present:
25 (A) That the recipient has a serious mental
26 illness or developmental disability.
27 (B) That because of said mental illness or
28 developmental disability, the recipient exhibits any
29 one of the following: (i) deterioration of his
30 ability to function, (ii) suffering, (iii) or
31 threatening behavior, or (iv) disruptive behavior.
32 (C) That the illness or disability has existed
33 for a period marked by the continuing presence of
34 the symptoms set forth in item (B) of this
-5- LRB9002676DJccA
1 subdivision (4) or the repeated episodic occurrence
2 of these symptoms.
3 (D) That the benefits of the psychotropic
4 medication will outweigh the harm.
5 (E) (Blank). That the recipient lacks the
6 capacity to make a reasoned decision about the
7 medication.
8 (F) That other less restrictive services have
9 been explored and found inappropriate.
10 (G) If the petition seeks authorization for
11 testing and other procedures, that such testing and
12 procedures are essential for the safe and effective
13 administration of the psychotropic medication.
14 (5) In no event shall an order issued under this
15 Section be effective for more than 90 days. However,
16 psychotropic medication may be administered for
17 additional 90-day periods without limitation under
18 hearings that comply with the above standards and
19 procedures of this subsection (a). If a new petition to
20 authorize the administration of psychotropic medication
21 is filed at least 15 days prior to the expiration of the
22 prior order, and if any continuance of the hearing is
23 agreed to by the recipient, the administration of
24 medication may continue in accordance with the prior
25 order pending the completion of a hearing under this
26 Section.
27 (6) An order issued under this subsection (a) shall
28 designate the persons authorized to administer the
29 psychotropic medication under the standards and
30 procedures of this subsection (a). Those persons shall
31 have complete discretion not to administer any medication
32 authorized under this Section. The order shall also
33 specify the medications and range of dosages that have
34 been authorized.
-6- LRB9002676DJccA
1 (b) A guardian may be authorized to consent to the
2 administration of psychotropic medication to an objecting
3 recipient only under the standards and procedures of
4 subsection (a).
5 (c) Notwithstanding any other provision of this Section,
6 a guardian may consent to the administration of psychotropic
7 medication to a non-objecting recipient under Article XIa of
8 the Probate Act of 1975.
9 (d) Nothing in this Section shall prevent the
10 administration of psychotropic medication to recipients in an
11 emergency under Section 2-107 of this Act.
12 (e) If the court determines that medication may be
13 administered to the recipient pursuant to this Section, the
14 court may appoint a monitor to oversee the administration of
15 the medication and any related services that may have been
16 ordered pursuant to this Section. The court may appoint an
17 existing guardian to serve as the monitor.
18 (f) Notwithstanding any of the provisions of this
19 Section, a surrogate decision maker, if one exists, may
20 consent to the administration of psychotropic medication to a
21 non-objecting recipient pursuant to Section 3-814.1 of this
22 Code. Notwithstanding any of the provisions of this Section,
23 psychotropic medication may be administered pursuant to the
24 terms of a power of attorney for health care executed in
25 compliance with the Powers of Attorney for Health Care Law
26 or a declaration for mental health treatment executed in
27 compliance with the Mental Health Treatment Preference
28 Declaration Act.
29 (Source: P.A. 89-11, eff. 3-31-95; 89-439, eff. 6-1-96.)
30 (405 ILCS 5/2-110) (from Ch. 91 1/2, par. 2-110)
31 Sec. 2-110. No recipient of services shall be subjected
32 to electro-convulsive therapy, or to any unusual, hazardous,
33 or experimental services or psychosurgery, without his
-7- LRB9002676DJccA
1 written and informed consent.
2 If the recipient is a minor or is under guardianship,
3 such recipient's parent or guardian is authorized, only with
4 the approval of the court, to provide informed consent for
5 participation of the ward in any such services which the
6 guardian deems to be in the best interests of the ward.
7 (Source: P.A. 80-1414.)
8 (405 ILCS 5/2-110.1 new)
9 Sec. 2-110.1. Administration of electro-convulsive
10 therapy upon application to a court.
11 (a) Notwithstanding any other provision in this Code,
12 electro-convulsive therapy may be administered to an adult
13 recipient of services who has not given informed consent to
14 that therapy pursuant to Section 2-102 of this Code only
15 under the following standards and procedures:
16 (1) Any person 18 years of age or older, including
17 any guardian, may petition the circuit court for an
18 order authorizing the administration of
19 electro-convulsive therapy to a recipient of services.
20 The petition must state that the petitioner has made a
21 good faith attempt to determine whether the recipient has
22 executed a power of attorney for health care under the
23 Powers of Attorney for Health Care Law or a declaration
24 for mental health treatment under the Mental Health
25 Treatment Preference Declaration Act and to obtain copies
26 of these instruments if they exist. If either of the
27 above-named instruments is available to the petitioner,
28 the instrument shall be attached to the petition as an
29 exhibit. The petitioner shall deliver a copy of the
30 petition, and notice of the time and place of the
31 hearing, to the respondent, his or her attorney, an agent
32 or attorney-in-fact, if any, and the guardian, if any, no
33 later than 10 days prior to the date of the hearing. The
-8- LRB9002676DJccA
1 petition may include a request that the court authorize
2 testing and procedures that may be essential for the safe
3 and effective administration of the therapy, but only if
4 the petition sets forth the specific testing and
5 procedures sought to be administered.
6 (2) The court shall hold a hearing within 14 days
7 after the filing of the petition. Continuances totaling
8 not more than 14 days may be granted to the recipient
9 upon a showing by him or her that the continuances are
10 needed in order to prepare adequately for a hearing under
11 this Section. The court may, in its discretion, grant
12 any additional continuances if agreed to by all parties.
13 The hearing shall be separate from a judicial proceeding
14 held to determine whether a person is subject to
15 involuntary admission.
16 (3) Unless otherwise provided herein, the procedures
17 set forth in Article VIII of Chapter III of this Code,
18 including the provisions regarding appointment of
19 counsel, shall govern hearings held pursuant to this
20 Section.
21 (4) Electro-convulsive therapy shall not be
22 administered to the recipient unless, based upon clear
23 and convincing evidence, the court finds that the
24 recipient lacks the capacity to make a reasoned decision
25 about the therapy. The fact that the recipient is
26 opposed to the therapy is not sufficient evidence, in and
27 of itself, to establish that the recipient lacks the
28 capacity to make a reasoned decision about the treatment.
29 If, and only if, the court finds a lack of capacity to
30 make a reasoned decision, the court may grant the
31 petition only if it also determines by clear and
32 convincing evidence that all of the following factors are
33 present:
34 (A) The recipient has a serious mental illness
-9- LRB9002676DJccA
1 or developmental disability.
2 (B) Because of the mental illness or
3 developmental disability, the recipient exhibits
4 any one of the following: (i) deterioration of his
5 or her ability to function, (ii) suffering, (iii)
6 threatening behavior, or (iv) disruptive behavior.
7 (C) The illness or disability has existed for a
8 period marked by the continuing presence of the
9 symptoms set forth in subparagraph (B) of this
10 paragraph (4) or the repeated episodic occurrence of
11 these symptoms.
12 (D) The benefits of the therapy outweigh the
13 harm.
14 (E) Other less restrictive services have been
15 explored and found inappropriate.
16 (F) If the petition seeks authorization for
17 testing and other procedures, the testing and
18 procedures are essential for the safe and effective
19 administration of the electro-convulsive therapy.
20 (5) In no event shall an order issued under this
21 Section be effective for more than 90 days. Therapy
22 may be administered for additional 90-day periods without
23 limitation, however, under hearings that comply with the
24 standards and procedures set forth in paragraphs (1)
25 through (4) of this subsection (a). If a new petition to
26 authorize the administration of therapy is filed at least
27 15 days prior to the expiration of the prior order, and
28 if any continuance of the hearing is agreed to by the
29 recipient, the administration of the therapy may continue
30 in accordance with the prior order pending the completion
31 of a hearing under this Section.
32 (6) An order issued under this subsection (a) shall
33 designate the persons authorized to administer the
34 therapy under the standards and procedures set forth in
-10- LRB9002676DJccA
1 this subsection (a). Those persons shall have complete
2 discretion not to administer any therapy authorized under
3 this Section. The order shall specify the maximum number
4 of treatments that are authorized.
5 (b) Electro-convulsive therapy may be authorized by a
6 guardian only pursuant to the standards and procedures set
7 forth in this Section, irrespective of whether the recipient
8 is objecting or not objecting to the therapy.
9 (c) Nothing in this Section shall be deemed to prevent
10 the administration of electro-convulsive therapy to a
11 recipient when delay for the purpose of obtaining court
12 approval of the treatment would endanger the life or
13 adversely and substantially affect the physical health of the
14 recipient. Electro-convulsive therapy may not be
15 administered under this subsection (c), however, for a
16 period in excess of 2 business days unless, within that
17 period, the facility or physician files a petition under
18 subsection (a) of this Section and the cessation of the
19 therapy would endanger the life or adversely and
20 substantially affect the physical health of the recipient.
21 (d) If the court determines that therapy may be
22 administered to the recipient pursuant to this Section, the
23 Court may appoint a monitor to oversee the administration of
24 the therapy and any related services that may have been
25 ordered pursuant to this Section. The court may appoint an
26 existing guardian to serve as the monitor.
27 (e) Notwithstanding any of the provisions of this
28 Section, electro-convulsive therapy may be administered
29 pursuant to the terms of a power of attorney for health care
30 executed in compliance with the Powers of Attorney for Health
31 Care Law or a declaration for mental health treatment
32 executed in compliance with the Mental Health Treatment
33 Preference Declaration Act.
-11- LRB9002676DJccA
1 (405 ILCS 5/2-110.2 new)
2 Sec. 2-110.2. Registration of equipment.
3 (a) A person may not administer electro-convulsive
4 therapy unless the equipment used to administer the therapy
5 is registered with the Department of Public Health.
6 (b) A mental health facility administering
7 electro-convulsive therapy or a private physician
8 administering the therapy on an outpatient basis shall file
9 an application for registration under this Section. The
10 applicant shall submit the application to the Department of
11 Public Health on a form prescribed by that Department.
12 (c) The application shall be accompanied by a
13 non-refundable application fee. The Department of Public
14 Health shall set the fee in a reasonable amount not to exceed
15 the cost to that Department to administer this Section.
16 (d) The application shall contain:
17 (1) the model, manufacturer, and age of each piece
18 of equipment used to administer the therapy; and
19 (2) any other information required by the
20 Department.
21 (e) The Department of Public Health may conduct an
22 investigation as considered necessary after receiving the
23 proper application and the required fee.
24 (f) The Department of Public Health by rule may prohibit
25 the registration and use of equipment of a type, model, or
26 age that that Department determines is dangerous.
27 (g) The Department of Public Health may deny, suspend,
28 or revoke a registration if that Department determines that
29 the equipment is dangerous. Any person affected by a final
30 administrative decision of the Department of Public Health
31 suspending or revoking the registration of equipment may have
32 the decision reviewed only under the Administrative Review
33 Law.
-12- LRB9002676DJccA
1 (405 ILCS 5/2-110.3 new)
2 Sec. 2-110.3. Reports.
3 (a) A mental hospital or facility administering
4 electro-convulsive therapy, psychosurgery, pre-frontal sonic
5 sound treatment, or any other convulsive or coma-producing
6 therapy administered to treat mental illness or a physician
7 administering the therapy on an outpatient basis shall submit
8 to the Department quarterly reports relating to the
9 administration of the therapy in the hospital or facility or
10 by the physician.
11 (b) A report shall state the following for each quarter:
12 (1) The number of persons who received the therapy,
13 including:
14 (A) the number of persons who gave informed
15 consent to the therapy;
16 (B) the number of persons confined as subject
17 to involuntary admission who gave informed consent
18 to the therapy;
19 (C) the number of persons who were subjected
20 to the therapy against their will following a
21 hearing pursuant to Section 2-110.1; and
22 (D) the number of persons who were subjected
23 to the therapy on an emergency basis pursuant to
24 subsection (c) of Section 2-110.1.
25 (2) The age, sex, and race of the recipients of the
26 therapy.
27 (3) The source of the treatment payment.
28 (4) The average number of electro-convulsive
29 treatments administered for each complete series of
30 treatments, but not including maintenance treatments.
31 (5) The average number of maintenance
32 electro-convulsive treatments administered per month.
33 (6) The number of fractures, reported memory
34 losses, incidents of apnea, and cardiac arrests without
-13- LRB9002676DJccA
1 death.
2 (7) Autopsy findings if death followed within 14
3 days after the date of the administration of the therapy.
4 (8) The outcome of the treatments.
5 (9) Any other information required by the
6 Department.
7 (405 ILCS 5/2-110.4 new)
8 Sec. 2-110.4. Use of information; report.
9 (a) The Department shall use the information received
10 under Section 2-110.3 to analyze, audit, and monitor the use
11 of electro-convulsive therapy, psychosurgery, pre-frontal
12 sonic sound treatment, or any other convulsive or
13 coma-producing therapy administered to treat mental illness.
14 (b) The Department shall prepare and publish an annual
15 written report summarizing by facility the information
16 received under Section 2-110.3. If the therapy is
17 administered by a private physician on an outpatient basis,
18 the report shall include that information but may not
19 identify the physician. The Department may not directly or
20 indirectly identify in a report issued under this Section a
21 recipient of the therapy.
22 (405 ILCS 5/3-209) (from Ch. 91 1/2, par. 3-209)
23 Sec. 3-209. Within three days of admission under this
24 Chapter, a treatment plan shall be prepared for each
25 recipient of service and entered into his or her record. The
26 plan shall include an assessment of the recipient's treatment
27 needs, a description of the services recommended for
28 treatment, the goals of each type of element of service, an
29 anticipated timetable for the accomplishment of the goals,
30 and a designation of the qualified professional responsible
31 for the implementation of the plan. The plan shall be
32 reviewed and updated as the clinical condition warrants, but
-14- LRB9002676DJccA
1 not less than every 30 days. The recipient or an interested
2 person on his or her behalf or the facility director may
3 petition the court pursuant to Section 3-814 or 3-814.1 of
4 this Code for review of the treatment plan or for appointment
5 of a surrogate decision maker.
6 (Source: P.A. 81-920.)
7 (405 ILCS 5/3-800) (from Ch. 91 1/2, par. 3-800)
8 Sec. 3-800. (a) Unless otherwise indicated, court
9 hearings under this Chapter shall be held pursuant to this
10 Article. Hearings shall be held in such quarters as the
11 court directs. To the extent practical, hearings shall be
12 held in the mental health facility where the respondent is
13 hospitalized. Any party may request a change of venue or
14 transfer to any other county because of the convenience of
15 parties or witnesses or the condition of the respondent. The
16 respondent may request to have the proceedings transferred to
17 the county of his residence.
18 (b) If the court grants a continuance on its own motion
19 or upon the motion of one of the parties, the respondent may
20 continue to be detained pending further order of the court.
21 Such continuance shall not extend beyond 15 days except to
22 the extent that continuances are requested by the respondent.
23 (c) Court hearings under this Chapter, including
24 hearings under Section 2-107.1 and Section 2-110, shall be
25 open to the press and public unless the respondent or some
26 other party requests that they be closed. The court may also
27 indicate its intention to close a hearing. Such a request
28 shall be granted unless there is an objection to closing a
29 hearing by a party or any other person. If an objection is
30 made, the court shall not close the hearing unless, following
31 a hearing, it determines that the patient's interest in
32 having the hearing closed is compelling. The court shall
33 support its determination with written findings of fact and
-15- LRB9002676DJccA
1 conclusions of law. The court shall not close the hearing if
2 the respondent objects to its closure. Whenever a court
3 determines that a hearing shall be closed, access to the
4 records of the hearing, including but not limited to
5 transcripts and pleadings, shall be limited to the parties
6 involved in the hearing, court personnel, and any person or
7 agency providing mental health services that are the subject
8 of the hearing. Access may also be granted, however,
9 pursuant to the provisions of the Mental Health and
10 Developmental Disabilities Confidentiality Act.
11 (Source: P.A. 85-971.)
12 (405 ILCS 5/3-814) (from Ch. 91 1/2, par. 3-814)
13 Sec. 3-814. Not more than 30 days after admission under
14 this Article, the facility director shall file a current
15 treatment plan with the court which includes an evaluation of
16 the recipient's progress and the extent to which he is
17 benefiting from treatment. The facility director shall also
18 deliver a copy of the plan to the counsel who represented the
19 recipient in the hearing that resulted in the recipient's
20 commitment. The court shall review the treatment plan. If the
21 recipient has been ordered committed to the facility after he
22 has been found not guilty by reason of insanity, the
23 treatment plan and its review shall be subject to the
24 provisions of Section 5-2-4 of the Unified Code of
25 Corrections. The court may order any public agency, officer,
26 or employee to render such information, cooperation, and
27 assistance as is within its legal authority and as may be
28 appropriate to achieve the objectives of this Section. The
29 recipient or an interested person on his behalf may request a
30 hearing or the court on its own motion may order a hearing to
31 review the treatment plan. If the court is satisfied that
32 the recipient is benefiting from treatment, it may continue
33 the original order for the remainder of the admission period.
-16- LRB9002676DJccA
1 If the court is not so satisfied, it may modify its original
2 order or it may order the recipient discharged.
3 (Source: P.A. 88-380.)
4 (405 ILCS 5/3-814.1)
5 Sec. 3-814.1. Surrogate decision making.
6 (a) Any person 18 years of age or older may petition the
7 court for the appointment of a temporary and limited
8 surrogate decision maker for an adult recipient of services
9 pursuant to the standards and procedures of this Section.
10 (b) The petitioner shall deliver a copy of the petition
11 and notice of the time and place of the hearing to the
12 recipient, his or her counsel, any guardian, any agent acting
13 under a power of attorney for health care or pursuant to the
14 Mental Health Treatment Preference Declaration Act, and any
15 person designated by the recipient pursuant to subsection (b)
16 of Section 2-200 of this Code, no later than 5 business days
17 prior to the date of the hearing. The petition must specify
18 in detail the specific mental health services, medical
19 services, related tests and procedures, or placement to which
20 the surrogate will be authorized to consent. The petition
21 shall be accompanied by a certificate from a physician
22 stating that the recipient has a serious mental illness and
23 that because of the mental illness the recipient lacks the
24 capacity to make a reasoned decision about necessary mental
25 health services, medical services, related tests and
26 procedures, or placement in the community.
27 (c) Unless otherwise provided herein, the procedures set
28 forth in Article VIII of Chapter III of this Code, including
29 the provisions regarding appointment of counsel, shall govern
30 hearings under this Section.
31 (d) A court may appoint a surrogate decision maker for
32 an adult recipient of services if and only if it determines
33 that:
-17- LRB9002676DJccA
1 (1) the recipient has a serious mental illness;
2 (2) because of the mental illness the recipient
3 lacks the capacity to make a reasoned decision about
4 necessary mental health services, medical services,
5 related tests and procedures, or community placement;
6 (3) the recipient has been admitted to a mental
7 health facility pursuant to Article III, IV, VI, VII, or
8 VIII of this Chapter;
9 (4) the recipient does not object to the
10 appointment of a temporary, limited surrogate decision
11 maker nor to the services to which the decision maker
12 will have the authority to consent; and
13 (5) the recipient does not have a current
14 temporary, limited, or plenary guardian of the person or
15 a valid advanced directive that provides for the services
16 to which the surrogate will be authorized to consent.
17 (e) The powers and duties of the surrogate decision
18 maker are subject to the following limitations:
19 (1) The surrogate decision maker shall have only
20 those powers enumerated in writing in the order
21 appointing the surrogate.
22 (2) The surrogate may be granted only the power to
23 consent to mental health services, medical services,
24 related tests and procedures, and placement. Mental
25 health services include, but are not limited to,
26 psychotropic medication. The term "mental health
27 services" as used in this Section does not include
28 electro-convulsive therapy, psychosurgery or unusual or
29 experimental procedures, or admission to a mental health
30 facility.
31 (3) Prior to seeking consent from a surrogate
32 appointed under this Section, a treatment provider shall
33 advise the recipient of the services for which consent
34 will be sought and of the risks and benefits of those
-18- LRB9002676DJccA
1 services. Under no circumstances may services be
2 administered pursuant to this Section to an objecting
3 recipient.
4 (4) Under no circumstances may services be
5 administered pursuant to this Section if the services
6 would conflict with any provision of a valid power of
7 attorney for health care or valid declaration for mental
8 health treatment.
9 (5) The powers and duties of a surrogate decision
10 maker appointed under this Section shall terminate at
11 the expiration of 60 days unless reauthorized pursuant to
12 the standards and procedures set forth in this Section.
13 Such renewals may not extend for a period totalling more
14 than one year.
15 (6) In no event shall the powers and duties of a
16 surrogate decision maker remain in effect more than 30
17 days after the recipient's discharge from an inpatient
18 mental health facility.
19 (f) Following a determination that the standards set
20 forth in subsection (d) of this Section have been met, the
21 court may appoint as a surrogate any person 21 years of age
22 or older who is not employed by or under contract to the
23 facility in which the recipient resides or employed by or
24 under contract to any facility owned by the same person,
25 corporation, or government agency. The court shall make an
26 inquiry as necessary to ensure that the surrogate decision
27 maker has the training or experience or both necessary to
28 perform the responsibilities assigned to him or her and that
29 the surrogate has no interests that would conflict with the
30 surrogate's fiduciary responsibilities to the recipient.
31 (g) The facility director or any other person providing
32 treatment under this Section may petition the court for
33 review of any decision made by the surrogate under this
34 Section. The review shall be governed by Section 3-814 of
-19- LRB9002676DJccA
1 this Code. Following a hearing, the court may override a
2 decision by the surrogate if and only if there is clear and
3 convincing evidence that the decision is not in the best
4 interest of the recipient. Nothing in this subsection shall
5 be deemed to authorize the administration of services over
6 the objection of the recipient.
7 (h) No person appointed as a surrogate decision maker
8 who is acting in good faith and without negligence shall
9 incur any liability, civil or criminal, in connection with
10 his or her service as a surrogate decision maker.
11 Section 10. The Mental Health and Developmental
12 Disabilities Confidentiality Act is amended by changing
13 Sections 2, 4, and 11 as follows:
14 (740 ILCS 110/2) (from Ch. 91 1/2, par. 802)
15 Sec. 2. The terms used in this Act, unless the context
16 requires otherwise, have the meanings ascribed to them in
17 this Section.
18 "Agent" means a person who has been legally appointed as
19 an individual's agent under a power of attorney for health
20 care or for property.
21 "Confidential communication" or "communication" means any
22 communication made by a recipient or other person to a
23 therapist or to or in the presence of other persons during or
24 in connection with providing mental health or developmental
25 disability services to a recipient. Communication includes
26 information which indicates that a person is a recipient.
27 "Guardian" means a legally appointed guardian or
28 conservator of the person.
29 "Mental health or developmental disabilities services" or
30 "services" includes but is not limited to examination,
31 diagnosis, evaluation, treatment, training, pharmaceuticals,
32 aftercare, habilitation or rehabilitation.
-20- LRB9002676DJccA
1 "Personal notes" means:
2 (i) information disclosed to the therapist in
3 confidence by other persons on condition that such
4 information would never be disclosed to the recipient or
5 other persons;
6 (ii) information disclosed to the therapist by the
7 recipient which would be injurious to the recipient's
8 relationships to other persons, and
9 (iii) the therapist's speculations, impressions,
10 hunches, and reminders.
11 "Parent" means a parent or, in the absence of a parent or
12 guardian, a person in loco parentis.
13 "Recipient" means a person who is receiving or has
14 received mental health or developmental disabilities
15 services.
16 "Record" means any record kept by a therapist or by an
17 agency in the course of providing mental health or
18 developmental disabilities service to a recipient concerning
19 the recipient and the services provided. "Records" includes
20 all records maintained by a court that have been created in
21 connection with, in preparation for, or as a result of the
22 filing of any petition or certificate under Chapter II,
23 Article VI or VII of Chapter III, or under Article IV or V of
24 Chapter IV of the Mental Health and Developmental
25 Disabilities Code and includes the petitions, certificates,
26 dispositional reports, treatment plans, and reports of
27 diagnostic evaluations and of hearings to determine if a
28 person is subject to involuntary admission under Article VIII
29 of Chapter III or subject to judicial admission under Article
30 V of Chapter IV of that Code. Record does not include the
31 therapist's personal notes, if such notes are kept in the
32 therapist's sole possession for his own personal use and are
33 not disclosed to any other person, except the therapist's
34 supervisor, consulting therapist or attorney. If at any time
-21- LRB9002676DJccA
1 such notes are disclosed, they shall be considered part of
2 the recipient's record for purposes of this Act.
3 "Record custodian" means a person responsible for
4 maintaining a recipient's record.
5 "Therapist" means a psychiatrist, physician,
6 psychologist, social worker, or nurse providing mental health
7 or developmental disabilities services or any other person
8 not prohibited by law from providing such services or from
9 holding himself out as a therapist if the recipient
10 reasonably believes that such person is permitted to do so.
11 Therapist includes any successor of the therapist.
12 (Source: P.A. 88-484; 89-58, eff. 1-1-96.)
13 (740 ILCS 110/4) (from Ch. 91 1/2, par. 804)
14 Sec. 4. (a) The following persons shall be entitled,
15 upon request, to inspect and copy a recipient's record or any
16 part thereof:
17 (1) the parent or guardian of a recipient who is
18 under 12 years of age;
19 (2) the recipient if he is 12 years of age or
20 older;
21 (3) the parent or guardian of a recipient who is at
22 least 12 but under 18 years, if the recipient is informed
23 and does not object or if the therapist does not find
24 that there are compelling reasons for denying the access.
25 The parent or guardian who is denied access by either the
26 recipient or the therapist may petition a court for
27 access to the record. Nothing in this paragraph is
28 intended to prohibit the parent or guardian of a
29 recipient who is at least 12 but under 18 years from
30 requesting and receiving the following information:
31 current physical and mental condition, diagnosis,
32 treatment needs, services provided, and services needed,
33 including medication, if any;
-22- LRB9002676DJccA
1 (4) the guardian of a recipient who is 18 years or
2 older;
3 (5) an attorney or guardian ad litem who represents
4 a minor 12 years of age or older in any judicial or
5 administrative proceeding, provided that the court or
6 administrative hearing officer has entered an order
7 granting the attorney this right; or
8 (6) an agent appointed under a recipient's power of
9 attorney for health care or for property, when the power
10 of attorney authorizes the access; or.
11 (7) a surrogate decision maker appointed pursuant to
12 Section 3-814.1 of the Mental Health and Developmental
13 Disabilities Code, when and to the extent the order
14 appointing the surrogate authorizes the access. Such an
15 order may authorize the surrogate to make such further
16 disclosure as is necessary to facilitate the placement or
17 discharge of the recipient, including, but not limited
18 to, applications for benefits.
19 (b) Assistance in interpreting the record may be
20 provided without charge and shall be provided if the person
21 inspecting the record is under 18 years of age. However,
22 access may in no way be denied or limited if the person
23 inspecting the record refuses the assistance. A reasonable
24 fee may be charged for duplication of a record. However, when
25 requested to do so in writing by any indigent recipient, the
26 custodian of the records shall provide at no charge to the
27 recipient, or to the Guardianship and Advocacy Commission,
28 the agency designated by the Governor under Section 1 of the
29 protection and advocacy for Developmentally Disabled Persons
30 Act or to any other not-for-profit agency whose primary
31 purpose is to provide free legal services or advocacy for the
32 indigent and who has received written authorization from the
33 recipient under Section 5 of this Act to receive his records,
34 one copy of any records in its possession whose disclosure is
-23- LRB9002676DJccA
1 authorized under this Act.
2 (c) Any person entitled to access to a record under this
3 Section may submit a written statement concerning any
4 disputed or new information, which statement shall be entered
5 into the record. Whenever any disputed part of a record is
6 disclosed, any submitted statement relating thereto shall
7 accompany the disclosed part. Additionally, any person
8 entitled to access may request modification of any part of
9 the record which he believes is incorrect or misleading. If
10 the request is refused, the person may seek a court order to
11 compel modification.
12 (d) Whenever access or modification is requested, the
13 request and any action taken thereon shall be noted in the
14 recipient's record.
15 (Source: P.A. 88-484; 89-439, eff. 6-1-96.)
16 (740 ILCS 110/11) (from Ch. 91 1/2, par. 811)
17 (Text of Section before amendment by P.A. 89-507)
18 Sec. 11. Disclosure of records and communications.
19 Records and communications may be disclosed, (i) in
20 accordance with the provisions of the Abused and Neglected
21 Child Reporting Act; (ii) when, and to the extent, a
22 therapist, in his or her sole discretion, determines that
23 disclosure is necessary to initiate or continue civil
24 commitment proceedings under the laws of this State or to
25 otherwise protect the recipient or other person against a
26 clear, imminent risk of serious physical or mental injury or
27 disease or death being inflicted upon the recipient or by the
28 recipient on himself or another; (iii) when, and to the
29 extent disclosure is, in the sole discretion of the
30 therapist, necessary to the provision of emergency medical
31 care to a recipient who is unable to assert or waive his or
32 her rights hereunder; (iv) when disclosure is necessary to
33 collect sums or receive third party payment representing
-24- LRB9002676DJccA
1 charges for mental health or developmental disabilities
2 services provided by a therapist or agency to a recipient
3 under Chapter V of the Mental Health and Developmental
4 Disabilities Code or to transfer debts under the Uncollected
5 States Claims Act; however, disclosure shall be limited to
6 information needed to pursue collection, and the information
7 so disclosed shall not be used for any other purposes nor
8 shall it be redisclosed except in connection with collection
9 activities; (v) when requested by a family member, the
10 Department of Mental Health and Developmental Disabilities
11 may assist in the location of the interment site of a
12 deceased recipient who is interred in a cemetery established
13 under Section 100-26 of the Department of Mental Health and
14 Developmental Disabilities Act; (vi) in court commitment
15 proceedings and involuntary medication hearings under Article
16 VIII of Chapter III and Article V of Chapter IV of the Mental
17 Health and Developmental Disabilities Code and proceedings
18 and investigations preliminary thereto, to the State's
19 Attorney for the county or residence of a person who is the
20 subject of such proceedings for whom involuntary or judicial
21 admission or involuntary medication is sought, or in which
22 the person is found, or in which the facility is located, and
23 to the attorney representing the recipient in the judicial
24 commitment proceedings or medication hearing, to any person
25 or agency providing mental health services that are the
26 subject of the proceedings and to that person's or agency's
27 attorney, to any court personnel, including but not limited
28 to judges and circuit court clerks, to any surrogate decision
29 maker appointed pursuant to Section 3-814.1 of the Mental
30 Health and Developmental Disabilities Code, and to a guardian
31 ad litem if one has been appointed by the court, provided
32 that the information so disclosed shall not be utilized for
33 any other purpose nor be redisclosed except in connection
34 with the proceedings or investigations; (vii) when, and to
-25- LRB9002676DJccA
1 the extent disclosure is necessary to comply with the
2 requirements of the Census Bureau in taking the federal
3 Decennial Census; and (viii) when, and to the extent, in the
4 therapist's sole discretion, disclosure is necessary to warn
5 or protect a specific individual against whom a recipient has
6 made a specific threat of violence where there exists a
7 therapist-recipient relationship or a special
8 recipient-individual relationship. Any person, institution,
9 or agency, under this Act, participating in good faith in the
10 making of a report under the Abused and Neglected Child
11 Reporting Act or in the disclosure of records and
12 communications under this Section, shall have immunity from
13 any liability, civil, criminal or otherwise, that might
14 result by reason of such action. For the purpose of any
15 proceeding, civil or criminal, arising out of a report or
16 disclosure under this Section, the good faith of any person,
17 institution, or agency so reporting or disclosing shall be
18 presumed.
19 (Source: P.A. 88-484; 89-439, eff. 6-1-96.)
20 (Text of Section after amendment by P.A. 89-507)
21 Sec. 11. Disclosure of records and communications.
22 Records and communications may be disclosed, (i) in
23 accordance with the provisions of the Abused and Neglected
24 Child Reporting Act; (ii) when, and to the extent, a
25 therapist, in his or her sole discretion, determines that
26 disclosure is necessary to initiate or continue civil
27 commitment proceedings under the laws of this State or to
28 otherwise protect the recipient or other person against a
29 clear, imminent risk of serious physical or mental injury or
30 disease or death being inflicted upon the recipient or by the
31 recipient on himself or another; (iii) when, and to the
32 extent disclosure is, in the sole discretion of the
33 therapist, necessary to the provision of emergency medical
34 care to a recipient who is unable to assert or waive his or
-26- LRB9002676DJccA
1 her rights hereunder; (iv) when disclosure is necessary to
2 collect sums or receive third party payment representing
3 charges for mental health or developmental disabilities
4 services provided by a therapist or agency to a recipient
5 under Chapter V of the Mental Health and Developmental
6 Disabilities Code or to transfer debts under the Uncollected
7 State Claims Act; however, disclosure shall be limited to
8 information needed to pursue collection, and the information
9 so disclosed shall not be used for any other purposes nor
10 shall it be redisclosed except in connection with collection
11 activities; (v) when requested by a family member, the
12 Department of Human Services may assist in the location of
13 the interment site of a deceased recipient who is interred in
14 a cemetery established under Section 100-26 of the Mental
15 Health and Developmental Disabilities Administrative Act;
16 (vi) in court commitment proceedings and involuntary
17 medication hearings under Article VIII of Chapter III and
18 Article V of Chapter IV of the Mental Health and
19 Developmental Disabilities Code and proceedings and
20 investigations preliminary thereto, to the State's Attorney
21 for the county or residence of a person who is the subject of
22 such proceedings for whom involuntary or judicial admission
23 or involuntary medication is sought, or in which the person
24 is found, or in which the facility is located, and to the
25 attorney representing the recipient in the judicial
26 commitment proceedings or medication hearing, to any person
27 or agency providing mental health services that are the
28 subject of the proceedings and to that person's or agency's
29 attorney, to any court personnel, including but not limited
30 to judges and circuit court clerks, to any surrogate decision
31 maker appointed pursuant to Section 3-814.1 of the Mental
32 Health and Developmental Disabilities Code, and to a guardian
33 ad litem if one has been appointed by the court, provided
34 that the information so disclosed shall not be utilized for
-27- LRB9002676DJccA
1 any other purpose nor be redisclosed except in connection
2 with the proceedings or investigations; (vii) when, and to
3 the extent disclosure is necessary to comply with the
4 requirements of the Census Bureau in taking the federal
5 Decennial Census; and (viii) when, and to the extent, in the
6 therapist's sole discretion, disclosure is necessary to warn
7 or protect a specific individual against whom a recipient has
8 made a specific threat of violence where there exists a
9 therapist-recipient relationship or a special
10 recipient-individual relationship. Any person, institution,
11 or agency, under this Act, participating in good faith in the
12 making of a report under the Abused and Neglected Child
13 Reporting Act or in the disclosure of records and
14 communications under this Section, shall have immunity from
15 any liability, civil, criminal or otherwise, that might
16 result by reason of such action. For the purpose of any
17 proceeding, civil or criminal, arising out of a report or
18 disclosure under this Section, the good faith of any person,
19 institution, or agency so reporting or disclosing shall be
20 presumed.
21 (Source: P.A. 88-484; 89-439, eff. 6-1-96; 89-507, eff.
22 7-1-97.)