96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB2258


 
Introduced 2/20/2009, by Sen. A. J. Wilhelmi
 
SYNOPSIS AS INTRODUCED:
 		








    



755 ILCS 40/15
  from Ch. 110 1/2, par. 851-15


755 ILCS 40/25
  from Ch. 110 1/2, par. 851-25







    Amends the Health Care Surrogate Act.  Provides that each health care facility shall maintain any advance directives proffered by the patient or other authorized person in the patient's records (instead of patient's records for the duration of the patient's stay). Provides that any surrogate shall have the authority to make decisions until removed by the patient who no longer lacks decision making capacity, appointment of a guardian of the person, or the patient's death. Effective immediately.
















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A BILL FOR









 











SB2258

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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 
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changing Sections 15 and 25 as follows:
 



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    (755 ILCS 40/15)  (from Ch. 110 1/2, par. 851-15)


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    Sec. 15. Applicability. This Act applies to patients who 
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lack
decisional capacity
or who have a qualifying condition.  
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This Act does not
apply to instances in which the patient has 
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an operative and unrevoked
living will under the Illinois 
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Living Will Act, an operative and unrevoked
declaration for 
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mental health treatment under the Mental Health Treatment

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Preferences Declaration Act, or an authorized agent under
a 
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power of attorney for health care under the Illinois Power of 
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Attorney
Act and the patient's condition falls within the 
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coverage of the living
will, the declaration for mental health 
17
treatment, or the power of attorney
for health care.  In those 
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instances, the
living will, declaration for mental health 
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treatment, or power of
attorney for health care, as the case 
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may be, shall
be given effect according to its terms.  This Act 
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does apply in
circumstances in which a patient has a qualifying 
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condition but the
patient's condition does not fall within the 
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coverage of the living will, the
declaration for mental health 
 


 






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treatment, or
the power of attorney for health care.

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    Each health care facility shall maintain any advance

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directives proffered by the patient or other authorized person,

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including a do not resuscitate order, a living will, a 
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declaration for mental
health treatment, or a
power of attorney 
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for health care, in the patient's medical records for the

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duration of the patient's stay. This Act does apply to patients 
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without
a qualifying condition.  If a patient is an adult with

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decisional
capacity, then the right to refuse medical treatment

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or life-sustaining
treatment does
not require the presence of a 
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qualifying condition.

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(Source: P.A. 90-246, eff. 1-1-98.)


 



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    (755 ILCS 40/25)  (from Ch. 110 1/2, par. 851-25)


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    Sec. 25. Surrogate decision making. 

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    (a) When a patient lacks
decisional capacity, the health 
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care provider must make a reasonable
inquiry as to the 
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availability and authority of a health care agent under
the 
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Powers of Attorney for Health Care Law.  When no health care 
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agent is
authorized and available, the health care provider 
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must make a reasonable
inquiry as to the availability of 
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possible surrogates listed in items (1)
through (4) of this

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subsection.  For purposes of this Section, a reasonable inquiry 
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includes,
but is not
limited to, identifying a member of the 
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patient's family or other health care
agent by
examining the 
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patient's personal effects or medical records.  If a family

 


 






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member or other
health care agent is identified, an attempt to 
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contact that person by telephone
must be
made within 24 hours 
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after a determination by the provider that the patient
lacks

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decisional capacity.
No person shall be liable for civil 
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damages or subject to
professional discipline based on a claim 
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of violating a patient's
right to confidentiality as a result 
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of making a reasonable
inquiry as to the availability of a 
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patient's family member
or health care agent, except for 
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willful or wanton misconduct.

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    The surrogate decision makers, as
identified by the 
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attending physician, are then authorized to make decisions
as 
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follows:  (i) for patients who lack decisional capacity and do 
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not have a
qualifying condition, medical treatment decisions 
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may be made in
accordance with subsection (b-5) of Section 20; 
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and (ii) for patients who
lack decisional capacity and have a 
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qualifying condition, medical treatment
decisions including

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whether to forgo life-sustaining treatment on behalf of the

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patient may be made without court order or judicial involvement 
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in the
following order of
priority:


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        (1) the patient's guardian of the person;


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        (2) the patient's spouse;


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        (3) any adult son or daughter of the patient;


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        (4) either parent of the patient;


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        (5) any adult brother or sister of the patient;


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        (6) any adult grandchild of the patient;


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        (7) a close friend of the patient;


 


 






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        (8) the patient's guardian of the estate.

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    The health care provider shall have the right to rely on 
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any of the above
surrogates if the provider believes after 
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reasonable inquiry that neither a
health care agent under the 
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Powers of Attorney for Health Care Law nor a
surrogate of 
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higher priority is available.

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    Where there are multiple surrogate decision makers at the 
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same
priority level in the hierarchy, it shall be the 
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responsibility of
those surrogates to make reasonable efforts 
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to reach a consensus as
to their decision on behalf of the 
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patient regarding the forgoing
of life-sustaining treatment.  
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If 2 or more surrogates who are in
the same category and have 
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equal priority indicate to the attending
physician that they 
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disagree about the health care matter at issue,
a majority of 
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the available persons in that category (or the parent
with 
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custodial rights) shall control, unless the minority (or the

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parent without custodial rights) initiates guardianship 
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proceedings in
accordance with the Probate Act of 1975.  No 
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health care provider or other
person is required to seek 
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appointment of a guardian.

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    (b) After a surrogate has been identified, the name, 
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address,
telephone number, and relationship of that person to 
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the patient
shall be recorded in the patient's medical record.

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    (c) Any surrogate who becomes unavailable for any reason 
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may be replaced
by applying the provisions of Section 25 in the 
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same manner as for the
initial choice of surrogate.

 


 






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    (d) In the event an individual of a higher priority to an 
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identified
surrogate becomes available and willing to be the 
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surrogate, the individual
with higher priority may be 
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identified as the surrogate.  In the event
an individual in a 
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higher, a lower, or the same priority level or a health
care 
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provider seeks to challenge the priority of or the 
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life-sustaining
treatment decision of the recognized surrogate 
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decision maker, the
challenging party may initiate 
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guardianship proceedings in accordance with
the Probate Act of 
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1975.

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    (e) The surrogate decision maker shall have the same right 
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as
the patient to receive medical information and medical 
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records and to
consent to disclosure.

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    (f) Any surrogate shall have the authority to make 
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decisions for the patient until removed by the patient who no 
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longer lacks decisional capacity, appointment of a guardian of 
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the person, or the patient's death. 
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(Source: P.A. 92-364, eff. 8-15-01.)



 

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    Section 99. Effective date. This Act takes effect upon 
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becoming law.