Illinois General Assembly - Full Text of SB0109
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Full Text of SB0109  102nd General Assembly

SB0109eng 102ND GENERAL ASSEMBLY

  
  
  

 


 
SB0109 EngrossedLRB102 10223 LNS 15547 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Health Care Surrogate Act is amended by
5changing Sections 10, 20, and 65 as follows:
 
6    (755 ILCS 40/10)  (from Ch. 110 1/2, par. 851-10)
7    Sec. 10. Definitions.
8    "Adult" means a person who is (i) 18 years of age or older
9or (ii) an emancipated minor under the Emancipation of Minors
10Act.
11    "Artificial nutrition and hydration" means supplying food
12and water through a conduit, such as a tube or intravenous
13line, where the recipient is not required to chew or swallow
14voluntarily, including, but not limited to, nasogastric tubes,
15gastrostomies, jejunostomies, and intravenous infusions.
16Artificial nutrition and hydration does not include assisted
17feeding, such as spoon or bottle feeding.
18    "Available" means that a person is not "unavailable". A
19person is unavailable if (i) the person's existence is not
20known, (ii) the person has not been able to be contacted by
21telephone or mail, or (iii) the person lacks decisional
22capacity, refuses to accept the office of surrogate, or is
23unwilling to respond in a manner that indicates a choice among

 

 

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1the treatment matters at issue.
2    "Attending physician" means the physician selected by or
3assigned to the patient who has primary responsibility for
4treatment and care of the patient and who is a licensed
5physician in Illinois. If more than one physician shares that
6responsibility, any of those physicians may act as the
7attending physician under this Act.
8    "Close friend" means any person 18 years of age or older
9who has exhibited special care and concern for the patient and
10who presents an affidavit to the attending physician stating
11that he or she (i) is a close friend of the patient, (ii) is
12willing and able to become involved in the patient's health
13care, and (iii) has maintained such regular contact with the
14patient as to be familiar with the patient's activities,
15health, and religious and moral beliefs. The affidavit must
16also state facts and circumstances that demonstrate that
17familiarity.
18    "Death" means when, according to accepted medical
19standards, there is (i) an irreversible cessation of
20circulatory and respiratory functions or (ii) an irreversible
21cessation of all functions of the entire brain, including the
22brain stem.
23    "Decisional capacity" means the ability to understand and
24appreciate the nature and consequences of a decision regarding
25medical treatment or forgoing life-sustaining treatment and
26the ability to reach and communicate an informed decision in

 

 

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1the matter as determined by the attending physician.
2    "Forgo life-sustaining treatment" means to withhold,
3withdraw, or terminate all or any portion of life-sustaining
4treatment with knowledge that the patient's death is likely to
5result.
6    "Guardian" means a court appointed guardian of the person
7who serves as a representative of a minor or as a
8representative of a person under legal disability.
9    "Health care facility" means a type of health care
10provider commonly known by a wide variety of titles, including
11but not limited to, hospitals, medical centers, nursing homes,
12rehabilitation centers, long term or tertiary care facilities,
13and other facilities established to administer health care and
14provide overnight stays in their ordinary course of business
15or practice.
16    "Health care provider" means a person that is licensed,
17certified, or otherwise authorized or permitted by the law of
18this State to administer health care in the ordinary course of
19business or practice of a profession, including, but not
20limited to, physicians, nurses, health care facilities, and
21any employee, officer, director, agent, or person under
22contract with such a person.
23    "Imminent" (as in "death is imminent") means a
24determination made by the attending physician according to
25accepted medical standards that death will occur in a
26relatively short period of time, even if life-sustaining

 

 

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1treatment is initiated or continued.
2    "Life-sustaining treatment" means any medical treatment,
3procedure, or intervention that, in the judgment of the
4attending physician, when applied to a patient with a
5qualifying condition, would not be effective to remove the
6qualifying condition or would serve only to prolong the dying
7process. Those procedures can include, but are not limited to,
8assisted ventilation, renal dialysis, surgical procedures,
9blood transfusions, and the administration of drugs,
10antibiotics, and artificial nutrition and hydration.
11    "Minor" means an individual who is not an adult as defined
12in this Act.
13    "Parent" means a person who is the natural or adoptive
14mother or father of the child and whose parental rights have
15not been terminated by a court of law.
16    "Patient" means an adult or minor individual, unless
17otherwise specified, under the care or treatment of a licensed
18physician or other health care provider.
19    "Person" means an individual, a corporation, a business
20trust, a trust, a partnership, an association, a government, a
21governmental subdivision or agency, or any other legal entity.
22    "Qualifying condition" means the existence of one or more
23of the following conditions in a patient certified in writing
24in the patient's medical record by the attending physician and
25by at least one other qualified health care practitioner
26physician:

 

 

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1        (1) "Terminal condition" means an illness or injury
2    for which there is no reasonable prospect of cure or
3    recovery, death is imminent, and the application of
4    life-sustaining treatment would only prolong the dying
5    process.
6        (2) "Permanent unconsciousness" means a condition
7    that, to a high degree of medical certainty, (i) will last
8    permanently, without improvement, (ii) in which thought,
9    sensation, purposeful action, social interaction, and
10    awareness of self and environment are absent, and (iii)
11    for which initiating or continuing life-sustaining
12    treatment, in light of the patient's medical condition,
13    provides only minimal medical benefit.
14        (3) "Incurable or irreversible condition" means an
15    illness or injury (i) for which there is no reasonable
16    prospect of cure or recovery, (ii) that ultimately will
17    cause the patient's death even if life-sustaining
18    treatment is initiated or continued, (iii) that imposes
19    severe pain or otherwise imposes an inhumane burden on the
20    patient, and (iv) for which initiating or continuing
21    life-sustaining treatment, in light of the patient's
22    medical condition, provides only minimal medical benefit.
23    The determination that a patient has a qualifying
24condition creates no presumption regarding the application or
25non-application of life-sustaining treatment. It is only after
26a determination by the attending physician that the patient

 

 

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1has a qualifying condition that the surrogate decision maker
2may consider whether or not to forgo life-sustaining
3treatment. In making this decision, the surrogate shall weigh
4the burdens on the patient of initiating or continuing
5life-sustaining treatment against the benefits of that
6treatment.
7    "Qualified health care practitioner" means an individual
8who has personally examined the patient and who is an Illinois
9licensed physician, advanced practice registered nurse,
10physician assistant, or resident with at least one year of
11graduate or specialty training in this State who holds an
12Illinois temporary license to practice medicine and is
13enrolled in a residency program accredited by the Liaison
14Committee on Graduate Medical Education or the Bureau of
15Professional Education of the American Osteopathic
16Association.
17    "Physician" means a physician licensed to practice
18medicine in all its branches in this State.
19    "Qualified physician" means a physician licensed to
20practice medicine in all of its branches in Illinois who has
21personally examined the patient.
22    "Surrogate decision maker" means an adult individual or
23individuals who (i) have decisional capacity, (ii) are
24available upon reasonable inquiry, (iii) are willing to make
25medical treatment decisions on behalf of a patient who lacks
26decisional capacity, and (iv) are identified by the attending

 

 

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1physician in accordance with the provisions of this Act as the
2person or persons who are to make those decisions in
3accordance with the provisions of this Act.
4(Source: P.A. 95-331, eff. 8-21-07.)
 
5    (755 ILCS 40/20)  (from Ch. 110 1/2, par. 851-20)
6    Sec. 20. Private decision making process.
7    (a) Decisions whether to forgo life-sustaining or any
8other form of medical treatment involving an adult patient
9with decisional capacity may be made by that adult patient.
10    (b) Decisions whether to forgo life-sustaining treatment
11on behalf of a patient without decisional capacity are lawful,
12without resort to the courts or legal process, if the patient
13has a qualifying condition and if the decisions are made in
14accordance with one of the following paragraphs in this
15subsection and otherwise meet the requirements of this Act:
16        (1) Decisions whether to forgo life-sustaining
17    treatment on behalf of a minor or an adult patient who
18    lacks decisional capacity may be made by a surrogate
19    decision maker or makers in consultation with the
20    attending physician, in the order or priority provided in
21    Section 25. A surrogate decision maker shall make
22    decisions for the adult patient conforming as closely as
23    possible to what the patient would have done or intended
24    under the circumstances, taking into account evidence that
25    includes, but is not limited to, the patient's personal,

 

 

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1    philosophical, religious and moral beliefs and ethical
2    values relative to the purpose of life, sickness, medical
3    procedures, suffering, and death. Where possible, the
4    surrogate shall determine how the patient would have
5    weighed the burdens and benefits of initiating or
6    continuing life-sustaining treatment against the burdens
7    and benefits of that treatment. In the event an unrevoked
8    advance directive, such as a living will, a declaration
9    for mental health treatment, or a power of attorney for
10    health care, is no longer valid due to a technical
11    deficiency or is not applicable to the patient's
12    condition, that document may be used as evidence of a
13    patient's wishes. The absence of a living will,
14    declaration for mental health treatment, or power of
15    attorney for health care shall not give rise to any
16    presumption as to the patient's preferences regarding the
17    initiation or continuation of life-sustaining procedures.
18    If the adult patient's wishes are unknown and remain
19    unknown after reasonable efforts to discern them or if the
20    patient is a minor, the decision shall be made on the basis
21    of the patient's best interests as determined by the
22    surrogate decision maker. In determining the patient's
23    best interests, the surrogate shall weigh the burdens on
24    and benefits to the patient of initiating or continuing
25    life-sustaining treatment against the burdens and benefits
26    of that treatment and shall take into account any other

 

 

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1    information, including the views of family and friends,
2    that the surrogate decision maker believes the patient
3    would have considered if able to act for herself or
4    himself.
5        (2) Decisions whether to forgo life-sustaining
6    treatment on behalf of a minor or an adult patient who
7    lacks decisional capacity, but without any surrogate
8    decision maker or guardian being available determined
9    after reasonable inquiry by the health care provider, may
10    be made by a court appointed guardian. A court appointed
11    guardian shall be treated as a surrogate for the purposes
12    of this Act.
13    (b-5) Decisions concerning medical treatment on behalf of
14a patient without decisional capacity are lawful, without
15resort to the courts or legal process, if the patient does not
16have a qualifying condition and if decisions are made in
17accordance with one of the following paragraphs in this
18subsection and otherwise meet the requirements of this Act:
19        (1) Decisions concerning medical treatment on behalf
20    of a minor or adult patient who lacks decisional capacity
21    may be made by a surrogate decision maker or makers in
22    consultation with the attending physician, in the order of
23    priority provided in Section 25 with the exception that
24    decisions to forgo life-sustaining treatment may be made
25    only when a patient has a qualifying condition. A
26    surrogate decision maker shall make decisions for the

 

 

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1    patient conforming as closely as possible to what the
2    patient would have done or intended under the
3    circumstances, taking into account evidence that includes,
4    but is not limited to, the patient's personal,
5    philosophical, religious, and moral beliefs and ethical
6    values relative to the purpose of life, sickness, medical
7    procedures, suffering, and death. In the event an
8    unrevoked advance directive, such as a living will, a
9    declaration for mental health treatment, or a power of
10    attorney for health care, is no longer valid due to a
11    technical deficiency or is not applicable to the patient's
12    condition, that document may be used as evidence of a
13    patient's wishes. The absence of a living will,
14    declaration for mental health treatment, or power of
15    attorney for health care shall not give rise to any
16    presumption as to the patient's preferences regarding any
17    process. If the adult patient's wishes are unknown and
18    remain unknown after reasonable efforts to discern them or
19    if the patient is a minor, the decision shall be made on
20    the basis of the patient's best interests as determined by
21    the surrogate decision maker. In determining the patient's
22    best interests, the surrogate shall weigh the burdens on
23    and benefits to the patient of the treatment against the
24    burdens and benefits of that treatment and shall take into
25    account any other information, including the views of
26    family and friends, that the surrogate decision maker

 

 

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1    believes the patient would have considered if able to act
2    for herself or himself.
3        (2) Decisions concerning medical treatment on behalf
4    of a minor or adult patient who lacks decisional capacity,
5    but without any surrogate decision maker or guardian being
6    available as determined after reasonable inquiry by the
7    health care provider, may be made by a court appointed
8    guardian. A court appointed guardian shall be treated as a
9    surrogate for the purposes of this Act.
10    (c) For the purposes of this Act, a patient or surrogate
11decision maker is presumed to have decisional capacity in the
12absence of actual notice to the contrary without regard to
13advanced age. With respect to a patient, a diagnosis of mental
14illness or an intellectual disability, of itself, is not a bar
15to a determination of decisional capacity. A determination
16that an adult patient lacks decisional capacity shall be made
17by the attending physician to a reasonable degree of medical
18certainty. The determination shall be in writing in the
19patient's medical record and shall set forth the attending
20physician's opinion regarding the cause, nature, and duration
21of the patient's lack of decisional capacity. Before
22implementation of a decision by a surrogate decision maker to
23forgo life-sustaining treatment, at least one other qualified
24health care practitioner physician must concur in the
25determination that an adult patient lacks decisional capacity.
26The concurring determination shall be made in writing in the

 

 

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1patient's medical record after personal examination of the
2patient. The attending physician shall inform the patient that
3it has been determined that the patient lacks decisional
4capacity and that a surrogate decision maker will be making
5life-sustaining treatment decisions on behalf of the patient.
6Moreover, the patient shall be informed of the identity of the
7surrogate decision maker and any decisions made by that
8surrogate. If the person identified as the surrogate decision
9maker is not a court appointed guardian and the patient
10objects to the statutory surrogate decision maker or any
11decision made by that surrogate decision maker, then the
12provisions of this Act shall not apply.
13    (d) A surrogate decision maker acting on behalf of the
14patient shall express decisions to forgo life-sustaining
15treatment to the attending physician and one adult witness who
16is at least 18 years of age. This decision and the substance of
17any known discussion before making the decision shall be
18documented by the attending physician in the patient's medical
19record and signed by the witness.
20    (e) The existence of a qualifying condition shall be
21documented in writing in the patient's medical record by the
22attending physician and shall include its cause and nature, if
23known. The written concurrence of another qualified health
24care practitioner physician is also required.
25    (f) Once the provisions of this Act are complied with, the
26attending physician shall thereafter promptly implement the

 

 

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1decision to forgo life-sustaining treatment on behalf of the
2patient unless he or she believes that the surrogate decision
3maker is not acting in accordance with his or her
4responsibilities under this Act, or is unable to do so for
5reasons of conscience or other personal views or beliefs.
6    (g) In the event of a patient's death as determined by a
7physician, all life-sustaining treatment and other medical
8care is to be terminated, unless the patient is an organ donor,
9in which case appropriate organ donation treatment may be
10applied or continued temporarily.
11    (h) A surrogate decision maker may execute a POLST
12portable medical orders form to forgo life-sustaining
13treatment consistent with this Section.
14(Source: P.A. 97-227, eff. 1-1-12.)
 
15    (755 ILCS 40/65)
16    Sec. 65. Department of Public Health Uniform POLST form.
17    (a) An individual of sound mind and having reached the age
18of majority or having obtained the status of an emancipated
19person pursuant to the Emancipation of Minors Act may execute
20a document (consistent with the Department of Public Health
21Uniform POLST form described in Section 2310-600 of the
22Department of Public Health Powers and Duties Law of the Civil
23Administrative Code of Illinois) directing that resuscitating
24efforts shall not be implemented. This individual may also
25revoke the document at will. Such a document may also be

 

 

SB0109 Engrossed- 14 -LRB102 10223 LNS 15547 b

1executed by a qualified an attending health care practitioner.
2If more than one practitioner shares that responsibility for
3the treatment and care of an individual, any of the qualified
4attending health care practitioners may act under this
5Section. Notwithstanding the existence of a do-not-resuscitate
6(DNR) order or Department of Public Health Uniform POLST form,
7appropriate organ donation treatment may be applied or
8continued temporarily in the event of the patient's death, in
9accordance with subsection (g) of Section 20 of this Act, if
10the patient is an organ donor.
11    (a-5) Execution of a Department of Public Health Uniform
12POLST form is voluntary; no person can be required to execute
13the either form. Execution of a POLST form shall not be a
14requirement for admission to any facility or a precondition to
15the provision of services by any provider of health care
16services. A person who has executed a Department of Public
17Health Uniform POLST form should review the form annually and
18when the person's condition changes.
19    (b) Consent to a Department of Public Health Uniform POLST
20form may be obtained from the individual, or from another
21person at the individual's direction, or from the individual's
22legal guardian, agent under a power of attorney for health
23care, or surrogate decision maker, and witnessed by one
24individual 18 years of age or older, who attests that the
25individual, other person, guardian, agent, or surrogate (1)
26has had an opportunity to read the form; and (2) has signed the

 

 

SB0109 Engrossed- 15 -LRB102 10223 LNS 15547 b

1form or acknowledged his or her signature or mark on the form
2in the witness's presence.
3    (b-5) As used in this Section: ,
4    "attending health care practitioner" means an individual
5who (1) is an Illinois licensed physician, advanced practice
6registered nurse, physician assistant, or licensed resident
7after completion of one year in a program; (2) is selected by
8or assigned to the patient; and (3) has primary responsibility
9for treatment and care of the patient.
10    "POLST" means practitioner orders for life-sustaining
11treatments.
12    "POLST portable medical orders form" means a medical
13orders form, including, but not limited to, a Medical Orders
14for Scope of Treatment (MOST), Medical Orders for Life
15Sustaining Treatment (MOLST), Physician Orders for Scope of
16Treatment (POST), or Physician Orders for Life Sustaining
17Treatment (POLST) form, that is formally authorized by a state
18or territory within the United States.
19    (c) Nothing in this Section shall be construed to affect
20the ability of an individual to include instructions in an
21advance directive, such as a power of attorney for health
22care. The uniform form may, but need not, be in the form
23adopted by the Department of Public Health pursuant to Section
242310-600 of the Department of Public Health Powers and Duties
25Law (20 ILCS 2310/2310-600). Except as otherwise provided by
26law, emergency medical service personnel, a health care

 

 

SB0109 Engrossed- 16 -LRB102 10223 LNS 15547 b

1provider, or a health care facility shall comply with a
2Department of Public Health Uniform POLST form, National POLST
3form, another state's POLST portable medical orders form, or
4an out-of-hospital Do Not Resuscitate (DNR) order sanctioned
5by a state in the United States that: (i) has been executed by
6an adult; and (ii) is apparent and immediately available.
7    (d) A health care professional or health care provider may
8presume, in the absence of knowledge to the contrary, that a
9completed Department of Public Health Uniform POLST form,
10National POLST form, another state's POLST portable medical
11orders form, or an out-of-hospital Do Not Resuscitate (DNR)
12order sanctioned by a state in the United States executed by an
13adult, or a copy of that form or a previous version of the
14uniform form, is valid. A health care professional or health
15care provider, or an employee of a health care professional or
16health care provider, who in good faith complies with a
17cardiopulmonary resuscitation (CPR) or life-sustaining
18treatment order, Department of Public Health Uniform POLST
19form, or a previous version of the uniform form made in
20accordance with this Act is not, as a result of that
21compliance, subject to any criminal or civil liability, except
22for willful and wanton misconduct, and may not be found to have
23committed an act of unprofessional conduct.
24    (d-5) Before voiding or revoking a Department of Public
25Health Uniform POLST form, National POLST form, or another
26state's POLST portable medical orders form executed by the

 

 

SB0109 Engrossed- 17 -LRB102 10223 LNS 15547 b

1individual, that individual's legally authorized surrogate
2decision maker shall first: (1) engage in consultation with a
3qualified health care practitioner; (2) consult the patient's
4advance directive, if available; and (3) make a good faith
5effort to act consistently, at all times, with the patient's
6known wishes, using substituted judgment as the standard. If
7the patient's wishes are unknown and remain unknown after
8reasonable efforts to discern them, the decision shall be made
9on the basis of the patient's best interests as determined by
10the surrogate decision maker. A qualified health care
11practitioner shall document the reasons for this action in the
12patient's medical record. This process does not apply to an
13individual wanting to revoke his or her own POLST form.
14    (e) Nothing in this Section or this amendatory Act of the
1594th General Assembly or this amendatory Act of the 98th
16General Assembly shall be construed to affect the ability of a
17physician or other practitioner to make a do-not-resuscitate
18order.
19(Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18.)