SB2258 Engrossed

LRB096 04251 AJO 14297 b






1
    AN ACT concerning civil law.

 
2
    Be it enacted by the People of the State of Illinois,
 
3
represented in the General Assembly:


 
4
    Section 5. The Health Care Surrogate Act is amended  by 
5
changing Sections 15 and 25 as follows:
 



6
    (755 ILCS 40/15)  (from Ch. 110 1/2, par. 851-15)


7
    Sec. 15. Applicability. This Act applies to patients who 
8
lack
decisional capacity
or who have a qualifying condition.  
9
This Act does not
apply to instances in which the patient has 
10
an operative and unrevoked
living will under the Illinois 
11
Living Will Act, an operative and unrevoked
declaration for 
12
mental health treatment under the Mental Health Treatment

13
Preferences Declaration Act, or an authorized agent under
a 
14
power of attorney for health care under the Illinois Power of 
15
Attorney
Act and the patient's condition falls within the 
16
coverage of the living
will, the declaration for mental health 
17
treatment, or the power of attorney
for health care.  In those 
18
instances, the
living will, declaration for mental health 
19
treatment, or power of
attorney for health care, as the case 
20
may be, shall
be given effect according to its terms.  This Act 
21
does apply in
circumstances in which a patient has a qualifying 
22
condition but the
patient's condition does not fall within the 
23
coverage of the living will, the
declaration for mental health 
 


 






SB2258 Engrossed
- 2 -
LRB096 04251 AJO 14297 b




1
treatment, or
the power of attorney for health care.

2
    Each health care facility shall maintain any advance

3
directives proffered by the patient or other authorized person,

4
including a do not resuscitate order, a living will, a 
5
declaration for mental
health treatment, or a
power of attorney 
6
for health care, in the patient's medical records for the

7
duration of the patient's stay. This Act does apply to patients 
8
without
a qualifying condition.  If a patient is an adult with

9
decisional
capacity, then the right to refuse medical treatment

10
or life-sustaining
treatment does
not require the presence of a 
11
qualifying condition.

12
(Source: P.A. 90-246, eff. 1-1-98.)


 



13
    (755 ILCS 40/25)  (from Ch. 110 1/2, par. 851-25)


14
    Sec. 25. Surrogate decision making. 

15
    (a) When a patient lacks
decisional capacity, the health 
16
care provider must make a reasonable
inquiry as to the 
17
availability and authority of a health care agent under
the 
18
Powers of Attorney for Health Care Law.  When no health care 
19
agent is
authorized and available, the health care provider 
20
must make a reasonable
inquiry as to the availability of 
21
possible surrogates listed in items (1)
through (4) of this

22
subsection.  For purposes of this Section, a reasonable inquiry 
23
includes,
but is not
limited to, identifying a member of the 
24
patient's family or other health care
agent by
examining the 
25
patient's personal effects or medical records.  If a family

 


 






SB2258 Engrossed
- 3 -
LRB096 04251 AJO 14297 b




1
member or other
health care agent is identified, an attempt to 
2
contact that person by telephone
must be
made within 24 hours 
3
after a determination by the provider that the patient
lacks

4
decisional capacity.
No person shall be liable for civil 
5
damages or subject to
professional discipline based on a claim 
6
of violating a patient's
right to confidentiality as a result 
7
of making a reasonable
inquiry as to the availability of a 
8
patient's family member
or health care agent, except for 
9
willful or wanton misconduct.

10
    The surrogate decision makers, as
identified by the 
11
attending physician, are then authorized to make decisions
as 
12
follows:  (i) for patients who lack decisional capacity and do 
13
not have a
qualifying condition, medical treatment decisions 
14
may be made in
accordance with subsection (b-5) of Section 20; 
15
and (ii) for patients who
lack decisional capacity and have a 
16
qualifying condition, medical treatment
decisions including

17
whether to forgo life-sustaining treatment on behalf of the

18
patient may be made without court order or judicial involvement 
19
in the
following order of
priority:


20
        (1) the patient's guardian of the person;


21
        (2) the patient's spouse;


22
        (3) any adult son or daughter of the patient;


23
        (4) either parent of the patient;


24
        (5) any adult brother or sister of the patient;


25
        (6) any adult grandchild of the patient;


26
        (7) a close friend of the patient;


 


 






SB2258 Engrossed
- 4 -
LRB096 04251 AJO 14297 b




1
        (8) the patient's guardian of the estate.

2
    The health care provider shall have the right to rely on 
3
any of the above
surrogates if the provider believes after 
4
reasonable inquiry that neither a
health care agent under the 
5
Powers of Attorney for Health Care Law nor a
surrogate of 
6
higher priority is available.

7
    Where there are multiple surrogate decision makers at the 
8
same
priority level in the hierarchy, it shall be the 
9
responsibility of
those surrogates to make reasonable efforts 
10
to reach a consensus as
to their decision on behalf of the 
11
patient regarding the forgoing
of life-sustaining treatment.  
12
If 2 or more surrogates who are in
the same category and have 
13
equal priority indicate to the attending
physician that they 
14
disagree about the health care matter at issue,
a majority of 
15
the available persons in that category (or the parent
with 
16
custodial rights) shall control, unless the minority (or the

17
parent without custodial rights) initiates guardianship 
18
proceedings in
accordance with the Probate Act of 1975.  No 
19
health care provider or other
person is required to seek 
20
appointment of a guardian.

21
    (b) After a surrogate has been identified, the name, 
22
address,
telephone number, and relationship of that person to 
23
the patient
shall be recorded in the patient's medical record.

24
    (c) Any surrogate who becomes unavailable for any reason 
25
may be replaced
by applying the provisions of Section 25 in the 
26
same manner as for the
initial choice of surrogate.

 


 






SB2258 Engrossed
- 5 -
LRB096 04251 AJO 14297 b




1
    (d) In the event an individual of a higher priority to an 
2
identified
surrogate becomes available and willing to be the 
3
surrogate, the individual
with higher priority may be 
4
identified as the surrogate.  In the event
an individual in a 
5
higher, a lower, or the same priority level or a health
care 
6
provider seeks to challenge the priority of or the 
7
life-sustaining
treatment decision of the recognized surrogate 
8
decision maker, the
challenging party may initiate 
9
guardianship proceedings in accordance with
the Probate Act of 
10
1975.

11
    (e) The surrogate decision maker shall have the same right 
12
as
the patient to receive medical information and medical 
13
records and to
consent to disclosure.

14
    (f) Any surrogate shall have the authority to make 
15
decisions for the patient until removed by the patient who no 
16
longer lacks decisional capacity, appointment of a guardian of 
17
the person, or the patient's death. 
18
(Source: P.A. 92-364, eff. 8-15-01.)



 

19
    Section 99. Effective date. This Act takes effect upon 
20
becoming law.