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Public Act 102-0140
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| SB0109 Enrolled | LRB102 10223 LNS 15547 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Health Care Surrogate Act is amended by |
changing Sections 10, 20, and 65 as follows:
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(755 ILCS 40/10) (from Ch. 110 1/2, par. 851-10)
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Sec. 10. Definitions.
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"Adult" means a person who is (i) 18 years of age or older |
or (ii) an
emancipated minor under the Emancipation of
Minors |
Act.
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"Artificial nutrition and hydration" means supplying food |
and water through a
conduit, such as a tube or intravenous |
line, where the recipient is not
required to chew or swallow |
voluntarily, including, but not limited to,
nasogastric tubes, |
gastrostomies, jejunostomies, and
intravenous infusions. |
Artificial nutrition and hydration does not include
assisted |
feeding, such as spoon or bottle feeding.
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"Available" means that a person is not "unavailable". A |
person is
unavailable if (i) the person's existence is not |
known, (ii) the person has
not been able to be contacted by |
telephone or mail, or (iii) the person
lacks decisional |
capacity, refuses to accept the office of surrogate, or is
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unwilling to respond in a manner that indicates a choice among |
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the
treatment matters at issue.
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"Attending physician" means the physician selected by or
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assigned to the patient who has primary responsibility for
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treatment and care of the patient and who is a licensed |
physician
in Illinois. If more than one physician shares that
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responsibility, any of those physicians may act as the |
attending
physician under this Act.
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"Close friend" means any person 18 years of age or older |
who
has exhibited special care and concern for the patient and |
who
presents an affidavit to the attending physician stating |
that he or
she (i) is a close friend of the patient, (ii) is |
willing and able to become
involved in the patient's health |
care, and (iii) has maintained such
regular contact with the |
patient as to be familiar with the
patient's activities, |
health, and religious and moral beliefs. The
affidavit must |
also state facts and circumstances that demonstrate that
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familiarity.
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"Death" means when, according to accepted medical |
standards,
there is (i) an irreversible cessation of |
circulatory and
respiratory functions or (ii) an irreversible |
cessation of all
functions of the entire brain, including the |
brain stem.
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"Decisional capacity" means the ability to understand and
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appreciate the nature and consequences of a decision regarding
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medical treatment or
forgoing life-sustaining treatment and |
the ability to reach and
communicate an informed decision in |
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the matter as determined by the
attending physician.
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"Forgo life-sustaining treatment" means to withhold,
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withdraw, or terminate all or any portion of life-sustaining
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treatment with knowledge that the patient's death is likely to
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result.
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"Guardian" means a court appointed guardian of the person |
who
serves as a representative of a minor or as a |
representative of a
person under legal disability.
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"Health care facility" means a type of health care |
provider
commonly known by a wide variety of titles, including |
but not
limited to, hospitals, medical centers, nursing homes,
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rehabilitation centers, long term or tertiary care facilities, |
and
other facilities established to administer health care and |
provide
overnight stays in their ordinary course of business |
or practice.
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"Health care provider" means a person that is licensed,
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certified, or otherwise authorized or permitted by the law of |
this
State to administer health care in the ordinary course of |
business
or practice of a profession, including, but not |
limited to,
physicians, nurses, health care facilities, and |
any employee,
officer, director, agent, or person under |
contract with such a
person.
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"Imminent" (as in "death is imminent") means a |
determination
made by the attending physician according to |
accepted medical
standards that death will occur in a |
relatively short period of
time, even if life-sustaining |
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treatment is initiated or continued.
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"Life-sustaining treatment" means any medical treatment,
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procedure, or intervention that, in the judgment of the |
attending
physician, when applied to a patient with a |
qualifying condition,
would not be effective to remove the |
qualifying condition
or would serve only to prolong the dying |
process. Those
procedures can include, but are not limited to, |
assisted
ventilation, renal dialysis, surgical procedures, |
blood
transfusions, and the administration of drugs, |
antibiotics, and
artificial nutrition and hydration.
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"Minor" means an individual who is not an adult as defined |
in
this Act.
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"Parent" means a person who is the natural or adoptive |
mother
or father of the child and whose parental rights have |
not been
terminated by a court of law.
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"Patient" means an adult or minor individual, unless |
otherwise
specified, under the care or treatment of a licensed |
physician or
other health care provider.
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"Person" means an individual, a corporation, a business |
trust,
a trust, a partnership, an association, a government, a
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governmental subdivision or agency, or any other legal entity.
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"Qualifying condition" means the existence of one or more |
of
the following conditions in a patient certified in writing |
in the
patient's medical record by the attending physician and |
by at least
one other qualified health care practitioner |
physician:
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(1) "Terminal condition" means an illness or injury |
for
which there is no reasonable prospect of cure or |
recovery,
death is imminent, and the application of |
life-sustaining
treatment would only prolong the dying |
process.
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(2) "Permanent unconsciousness" means a condition |
that,
to a high degree of medical certainty, (i) will last
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permanently, without improvement, (ii) in which
thought, |
sensation, purposeful action, social interaction, and
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awareness of self and environment are absent, and (iii) |
for
which initiating or continuing life-sustaining |
treatment, in
light of the patient's medical condition, |
provides only
minimal medical benefit.
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(3) "Incurable or irreversible condition" means an
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illness or injury (i) for which there is no reasonable
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prospect of cure or recovery, (ii) that ultimately will |
cause
the patient's death even if life-sustaining |
treatment is
initiated or continued, (iii) that imposes |
severe pain or
otherwise imposes an inhumane burden on the |
patient, and (iv)
for which initiating or continuing |
life-sustaining treatment,
in light of the patient's |
medical condition, provides only
minimal medical benefit.
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The determination that a patient has a qualifying |
condition creates
no presumption regarding the application or |
non-application of life-sustaining
treatment. It is only after |
a determination by the attending physician that the patient |
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has a qualifying condition that the
surrogate decision maker |
may consider whether or not to forgo
life-sustaining |
treatment. In making this decision, the surrogate
shall weigh |
the burdens on the patient of initiating or continuing
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life-sustaining treatment against the benefits of that |
treatment.
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"Qualified health care practitioner" means an individual
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who has personally examined the patient and who is an Illinois
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licensed physician, advanced practice registered nurse,
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physician assistant, or resident with at least one year of
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graduate or specialty training in this State who holds an
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Illinois temporary license to practice medicine and is |
enrolled
in a residency program accredited by the Liaison |
Committee on
Graduate Medical Education or the Bureau of |
Professional
Education of the American Osteopathic |
Association. |
"Physician" means a physician licensed to practice |
medicine in all its branches in this State. |
"Qualified physician" means a physician licensed to |
practice
medicine in all of its branches in Illinois who has |
personally
examined the patient.
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"Surrogate decision maker" means an adult individual or
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individuals who (i) have decisional capacity, (ii) are |
available
upon reasonable inquiry, (iii) are willing to make |
medical treatment
decisions on behalf of
a patient who lacks |
decisional capacity, and (iv) are identified by
the attending |
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physician in accordance with the provisions of this
Act as the |
person or persons who are to make those decisions in
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accordance with the provisions of this Act.
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(Source: P.A. 95-331, eff. 8-21-07.)
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(755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
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Sec. 20. Private decision making process.
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(a) Decisions whether to forgo life-sustaining or any |
other
form of medical treatment involving an adult patient |
with
decisional capacity may be made by that adult patient.
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(b) Decisions whether to forgo life-sustaining treatment |
on
behalf of a patient without decisional capacity are lawful, |
without
resort to the courts or legal process, if the patient |
has a
qualifying condition and if the decisions are made in |
accordance
with one of the following paragraphs in this |
subsection and
otherwise meet the requirements of this Act:
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(1) Decisions whether to forgo life-sustaining
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treatment on behalf of a minor or an adult patient who |
lacks
decisional capacity may be made by a surrogate |
decision maker
or makers in consultation with the |
attending physician, in the
order or priority provided in |
Section 25. A surrogate decision
maker shall make |
decisions for the adult patient conforming as
closely as |
possible to what the patient would have done or
intended |
under the circumstances, taking into account evidence
that |
includes, but is not limited to, the patient's personal,
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philosophical, religious and moral beliefs and ethical |
values
relative to the purpose of life, sickness, medical |
procedures,
suffering, and death. Where possible, the |
surrogate shall
determine how the patient would have |
weighed the burdens and
benefits of initiating or |
continuing life-sustaining treatment
against the burdens |
and benefits of that treatment. In the
event an unrevoked |
advance directive, such as a living will, a declaration
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for mental health treatment, or
a power of attorney for |
health care, is no longer valid due to
a technical |
deficiency or is not applicable to the patient's
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condition, that document may be used as evidence of a
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patient's wishes. The absence of a living will, |
declaration for mental
health treatment, or power of
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attorney for health care shall not give rise to any
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presumption as to the patient's preferences regarding the
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initiation or continuation of life-sustaining procedures. |
If
the adult patient's wishes are unknown and remain |
unknown
after reasonable efforts to discern them or if the |
patient is
a minor, the decision shall be made on the basis |
of the
patient's best interests as determined by the |
surrogate
decision maker. In determining the patient's |
best interests,
the surrogate shall weigh the burdens on |
and benefits to the
patient of initiating or continuing |
life-sustaining treatment
against the burdens and benefits |
of that treatment and shall
take into account any other |
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information, including the views of
family and friends, |
that the surrogate decision maker believes
the patient |
would have considered if able to act for herself
or |
himself.
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(2) Decisions whether to forgo life-sustaining
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treatment on behalf of a minor or an adult patient who |
lacks decisional
capacity, but without any surrogate |
decision maker or guardian being
available determined |
after reasonable inquiry by the health
care provider, may |
be made by a court appointed guardian.
A court appointed |
guardian shall be treated as a surrogate for the
purposes |
of this Act.
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(b-5) Decisions concerning medical treatment on behalf of |
a patient
without decisional capacity are lawful, without |
resort to the courts or legal
process, if the patient does not |
have a qualifying condition and if decisions
are made in |
accordance with one of the following paragraphs in this |
subsection
and otherwise meet the requirements of this Act:
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(1) Decisions concerning medical treatment on behalf |
of a minor or adult
patient who lacks decisional capacity |
may be made by a surrogate decision maker
or makers in |
consultation with the attending physician, in the order of
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priority provided in Section 25 with the exception that |
decisions to forgo
life-sustaining treatment may be made |
only when a patient has a qualifying
condition. A |
surrogate decision maker shall make decisions for the |
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patient
conforming as closely as possible to what the |
patient would have done or
intended under the |
circumstances, taking into account evidence that includes,
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but is not limited to, the patient's personal, |
philosophical, religious, and
moral beliefs and ethical |
values relative to the purpose of life, sickness,
medical |
procedures, suffering, and death. In the event an |
unrevoked advance
directive, such as a living will, a |
declaration for mental health treatment, or
a power of |
attorney for health care, is no longer valid due to a |
technical
deficiency or is not applicable to the patient's |
condition, that document may
be used as evidence of a |
patient's wishes. The absence of a living will,
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declaration for mental health treatment, or power of |
attorney for health care
shall not give rise to any |
presumption as to the patient's preferences
regarding any |
process. If the adult patient's wishes are unknown and |
remain
unknown after reasonable efforts to discern them or |
if the patient is a minor,
the decision shall be made on |
the basis of the patient's best interests as
determined by |
the surrogate decision maker. In determining the patient's |
best
interests, the surrogate shall weigh the burdens on |
and benefits to the patient
of the treatment against the |
burdens and benefits of that treatment and shall
take into |
account any other information, including the views of |
family and
friends, that the surrogate decision maker |
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believes the patient would have
considered if able to act |
for herself or himself.
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(2) Decisions concerning medical treatment on behalf |
of a minor or adult
patient who lacks decisional capacity, |
but without any surrogate decision maker
or guardian being |
available as determined after reasonable inquiry by the
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health care provider, may be made by a court appointed |
guardian. A court
appointed guardian shall be treated as a |
surrogate for the purposes of this
Act.
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(c) For the purposes of this Act, a patient or surrogate
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decision maker is presumed to have decisional capacity in the
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absence of actual notice to the contrary without regard to |
advanced age.
With respect to a patient, a
diagnosis of mental |
illness or an intellectual disability, of itself, is
not a bar |
to a determination of decisional capacity. A
determination |
that an adult patient lacks decisional capacity shall
be made |
by the attending physician to a reasonable degree of
medical |
certainty. The determination shall be in writing in the
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patient's medical record and shall set forth the attending |
physician's opinion regarding the cause, nature, and duration |
of
the patient's lack of decisional capacity. Before |
implementation
of a decision by a surrogate decision maker to |
forgo
life-sustaining treatment, at least one other qualified |
health care practitioner physician
must concur in the |
determination that an adult patient lacks decisional
capacity. |
The concurring determination shall be made in writing in
the |
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patient's medical record after personal examination of the
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patient. The attending physician shall inform the patient that |
it
has been determined that the patient lacks decisional |
capacity and
that a surrogate decision maker will be making |
life-sustaining
treatment decisions on behalf of the patient. |
Moreover, the
patient shall be informed of the identity of the |
surrogate decision
maker and any decisions made by that |
surrogate. If the person
identified as the surrogate decision |
maker is not a court appointed
guardian and the patient |
objects to the statutory surrogate
decision maker or any |
decision made by that surrogate decision
maker, then the |
provisions of this Act shall not apply.
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(d) A surrogate decision maker acting on behalf of
the |
patient shall express decisions to forgo life-sustaining
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treatment to the attending physician and one adult witness who |
is
at least 18 years of age. This decision and the substance of |
any
known discussion before making the decision shall be |
documented by the
attending physician in the patient's medical |
record and signed by
the witness.
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(e) The existence of a qualifying condition shall be
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documented in writing in the patient's medical record by the
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attending physician and shall include its cause and nature, if
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known. The written concurrence of another qualified health |
care practitioner physician is
also required.
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(f) Once the provisions of this Act are complied with, the
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attending physician shall thereafter promptly implement the
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decision to forgo life-sustaining treatment on behalf of the
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patient unless he or she believes that the surrogate decision |
maker
is not acting in accordance with his or her |
responsibilities under
this Act, or is unable to do so for |
reasons of conscience or other
personal views or beliefs.
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(g) In the event of a patient's death as determined by a
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physician, all life-sustaining treatment and other medical |
care is
to be terminated, unless the patient is an organ donor, |
in which
case appropriate organ donation treatment may be |
applied or continued
temporarily.
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(h) A surrogate decision maker may execute a POLST |
portable medical orders form to forgo life-sustaining |
treatment consistent with this Section.
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(Source: P.A. 97-227, eff. 1-1-12.)
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(755 ILCS 40/65)
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Sec. 65. Department of Public Health Uniform POLST form.
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(a) An individual of sound mind and having reached the age |
of majority or
having
obtained the status of an emancipated |
person pursuant to the Emancipation of
Minors Act may execute |
a document (consistent with the Department of Public
Health |
Uniform POLST form described in Section 2310-600 of the |
Department of Public Health Powers and Duties Law of the
Civil |
Administrative Code of Illinois) directing that
resuscitating |
efforts shall not be implemented. This individual may also |
revoke the document at will. Such a document may also
be |
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executed by a qualified an attending health care practitioner. |
If more than one practitioner shares that responsibility for |
the treatment and care of an individual, any of the qualified |
attending health care practitioners may act under this |
Section. Notwithstanding the existence of a do-not-resuscitate |
(DNR)
order or Department of Public Health Uniform POLST form, |
appropriate organ donation treatment may be applied or |
continued
temporarily in the event of the patient's death, in |
accordance with subsection
(g) of Section 20 of this Act, if |
the patient is an organ donor.
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(a-5) Execution of a Department of Public Health Uniform |
POLST form is voluntary; no person can be required to execute |
the either form. Execution of a POLST form shall not be a
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requirement for admission to any facility or a precondition to
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the provision of services by any provider of health care
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services. A person who has executed a Department of Public |
Health Uniform POLST form should review the form annually and |
when the person's condition changes. |
(b) Consent to a Department of Public Health Uniform POLST |
form may be obtained from the individual, or from
another
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person at the individual's direction, or from the individual's |
legal guardian,
agent under a
power of attorney for health |
care, or surrogate decision maker, and witnessed
by one |
individual 18 years of age or older, who attests that the |
individual, other person, guardian, agent, or surrogate (1) |
has had an opportunity to read the form; and (2) has signed the |
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form or acknowledged his or her signature or mark on the form |
in the witness's presence.
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(b-5) As used in this Section: , |
"attending health care practitioner" means an individual |
who (1) is an Illinois licensed physician, advanced practice |
registered nurse, physician assistant, or licensed resident |
after completion of one year in a program; (2) is selected by |
or assigned to the patient; and (3) has primary responsibility |
for treatment and care of the patient. |
"POLST" means practitioner orders for life-sustaining |
treatments. |
"POLST portable medical orders form" means a medical |
orders form, including, but not limited to, a Medical Orders |
for Scope of Treatment (MOST), Medical Orders for Life |
Sustaining Treatment (MOLST), Physician Orders for Scope of |
Treatment (POST), or Physician Orders for Life Sustaining |
Treatment (POLST) form, that is formally authorized by a state |
or territory within the United States. |
(c) Nothing in this Section shall be construed to affect |
the ability of an individual to include instructions in an |
advance directive, such as a power of attorney for health |
care. The uniform form may, but need not, be in the form |
adopted by the
Department
of
Public Health pursuant to Section |
2310-600 of the Department of Public Health
Powers and
Duties |
Law (20 ILCS 2310/2310-600).
Except as otherwise provided by |
law, emergency medical service personnel, a health care |
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provider, or a health care facility shall comply with a |
Department of Public Health Uniform POLST form, National POLST |
form, another state's POLST portable medical orders form, or |
an out-of-hospital Do Not Resuscitate (DNR) order sanctioned |
by a state in the United States that: (i) has been executed by |
an adult; and (ii) is apparent and immediately available.
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(d) A health care professional or health care provider may |
presume, in the
absence
of knowledge to the contrary, that a |
completed Department of Public Health
Uniform POLST form, |
National POLST form, another state's POLST portable medical |
orders form, or an out-of-hospital Do Not Resuscitate (DNR) |
order sanctioned by a state in the United States executed by an |
adult,
or a copy of that form or a previous version of the |
uniform form, is valid. A health care professional or
health
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care provider, or an employee of a health care professional or |
health care
provider, who in
good faith complies
with a |
cardiopulmonary resuscitation (CPR) or life-sustaining |
treatment order, Department of Public Health Uniform POLST |
form, or a previous version of the uniform form made in |
accordance with this Act is not,
as a result of that |
compliance, subject to any criminal or civil liability,
except |
for willful and wanton misconduct, and
may not be found to have |
committed an act of unprofessional conduct. |
(d-5) Before voiding or revoking a Department of Public
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Health Uniform POLST form, National POLST form, or another
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state's POLST portable medical orders form executed by the |
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individual, that individual's legally authorized
surrogate |
decision maker shall first: (1) engage in
consultation with a |
qualified health care practitioner; (2)
consult the patient's |
advance directive, if available; and (3)
make a good faith |
effort to act consistently, at all times,
with the patient's |
known wishes, using substituted judgment as
the standard. If |
the patient's wishes are unknown and remain
unknown after |
reasonable efforts to discern them, the decision
shall be made |
on the basis of the patient's best interests as
determined by |
the surrogate decision maker. A qualified
health care |
practitioner shall document the reasons for this
action in the |
patient's medical record. This process does not apply to an |
individual wanting to revoke his or her own POLST form. |
(e) Nothing in this Section or this amendatory Act of the |
94th General Assembly or this amendatory Act of the 98th |
General Assembly shall be construed to affect the ability of a |
physician or other practitioner to make a do-not-resuscitate |
order.
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(Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18.)
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