Full Text of SB0109 102nd General Assembly
SB0109sam001 102ND GENERAL ASSEMBLY | Sen. Sara Feigenholtz Filed: 4/14/2021
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| 1 | | AMENDMENT TO SENATE BILL 109
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 109 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Health Care Surrogate Act is amended by | 5 | | changing 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 | 9 | | or (ii) an
emancipated minor under the Emancipation of
Minors | 10 | | Act.
| 11 | | "Artificial nutrition and hydration" means supplying food | 12 | | and water through a
conduit, such as a tube or intravenous | 13 | | line, where the recipient is not
required to chew or swallow | 14 | | voluntarily, including, but not limited to,
nasogastric tubes, | 15 | | gastrostomies, jejunostomies, and
intravenous infusions. | 16 | | Artificial nutrition and hydration does not include
assisted |
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| 1 | | feeding, such as spoon or bottle feeding.
| 2 | | "Available" means that a person is not "unavailable". A | 3 | | person is
unavailable if (i) the person's existence is not | 4 | | known, (ii) the person has
not been able to be contacted by | 5 | | telephone or mail, or (iii) the person
lacks decisional | 6 | | capacity, refuses to accept the office of surrogate, or is
| 7 | | unwilling to respond in a manner that indicates a choice among | 8 | | the
treatment matters at issue.
| 9 | | "Attending physician" means the physician selected by or
| 10 | | assigned to the patient who has primary responsibility for
| 11 | | treatment and care of the patient and who is a licensed | 12 | | physician
in Illinois. If more than one physician shares that
| 13 | | responsibility, any of those physicians may act as the | 14 | | attending
physician under this Act.
| 15 | | "Close friend" means any person 18 years of age or older | 16 | | who
has exhibited special care and concern for the patient and | 17 | | who
presents an affidavit to the attending physician stating | 18 | | that he or
she (i) is a close friend of the patient, (ii) is | 19 | | willing and able to become
involved in the patient's health | 20 | | care, and (iii) has maintained such
regular contact with the | 21 | | patient as to be familiar with the
patient's activities, | 22 | | health, and religious and moral beliefs. The
affidavit must | 23 | | also state facts and circumstances that demonstrate that
| 24 | | familiarity.
| 25 | | "Death" means when, according to accepted medical | 26 | | standards,
there is (i) an irreversible cessation of |
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| 1 | | circulatory and
respiratory functions or (ii) an irreversible | 2 | | cessation of all
functions of the entire brain, including the | 3 | | brain stem.
| 4 | | "Decisional capacity" means the ability to understand and
| 5 | | appreciate the nature and consequences of a decision regarding
| 6 | | medical treatment or
forgoing life-sustaining treatment and | 7 | | the ability to reach and
communicate an informed decision in | 8 | | the matter as determined by the
attending physician.
| 9 | | "Forgo life-sustaining treatment" means to withhold,
| 10 | | withdraw, or terminate all or any portion of life-sustaining
| 11 | | treatment with knowledge that the patient's death is likely to
| 12 | | result.
| 13 | | "Guardian" means a court appointed guardian of the person | 14 | | who
serves as a representative of a minor or as a | 15 | | representative of a
person under legal disability.
| 16 | | "Health care facility" means a type of health care | 17 | | provider
commonly known by a wide variety of titles, including | 18 | | but not
limited to, hospitals, medical centers, nursing homes,
| 19 | | rehabilitation centers, long term or tertiary care facilities, | 20 | | and
other facilities established to administer health care and | 21 | | provide
overnight stays in their ordinary course of business | 22 | | or practice.
| 23 | | "Health care provider" means a person that is licensed,
| 24 | | certified, or otherwise authorized or permitted by the law of | 25 | | this
State to administer health care in the ordinary course of | 26 | | business
or practice of a profession, including, but not |
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| 1 | | limited to,
physicians, nurses, health care facilities, and | 2 | | any employee,
officer, director, agent, or person under | 3 | | contract with such a
person.
| 4 | | "Imminent" (as in "death is imminent") means a | 5 | | determination
made by the attending physician according to | 6 | | accepted medical
standards that death will occur in a | 7 | | relatively short period of
time, even if life-sustaining | 8 | | treatment is initiated or continued.
| 9 | | "Life-sustaining treatment" means any medical treatment,
| 10 | | procedure, or intervention that, in the judgment of the | 11 | | attending
physician, when applied to a patient with a | 12 | | qualifying condition,
would not be effective to remove the | 13 | | qualifying condition
or would serve only to prolong the dying | 14 | | process. Those
procedures can include, but are not limited to, | 15 | | assisted
ventilation, renal dialysis, surgical procedures, | 16 | | blood
transfusions, and the administration of drugs, | 17 | | antibiotics, and
artificial nutrition and hydration.
| 18 | | "Minor" means an individual who is not an adult as defined | 19 | | in
this Act.
| 20 | | "Parent" means a person who is the natural or adoptive | 21 | | mother
or father of the child and whose parental rights have | 22 | | not been
terminated by a court of law.
| 23 | | "Patient" means an adult or minor individual, unless | 24 | | otherwise
specified, under the care or treatment of a licensed | 25 | | physician or
other health care provider.
| 26 | | "Person" means an individual, a corporation, a business |
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| 1 | | trust,
a trust, a partnership, an association, a government, a
| 2 | | governmental subdivision or agency, or any other legal entity.
| 3 | | "Qualifying condition" means the existence of one or more | 4 | | of
the following conditions in a patient certified in writing | 5 | | in the
patient's medical record by the attending physician and | 6 | | by at least
one other qualified health care practitioner | 7 | | physician :
| 8 | | (1) "Terminal condition" means an illness or injury | 9 | | for
which there is no reasonable prospect of cure or | 10 | | recovery,
death is imminent, and the application of | 11 | | life-sustaining
treatment would only prolong the dying | 12 | | process.
| 13 | | (2) "Permanent unconsciousness" means a condition | 14 | | that,
to a high degree of medical certainty, (i) will last
| 15 | | permanently, without improvement, (ii) in which
thought, | 16 | | sensation, purposeful action, social interaction, and
| 17 | | awareness of self and environment are absent, and (iii) | 18 | | for
which initiating or continuing life-sustaining | 19 | | treatment, in
light of the patient's medical condition, | 20 | | provides only
minimal medical benefit.
| 21 | | (3) "Incurable or irreversible condition" means an
| 22 | | illness or injury (i) for which there is no reasonable
| 23 | | prospect of cure or recovery, (ii) that ultimately will | 24 | | cause
the patient's death even if life-sustaining | 25 | | treatment is
initiated or continued, (iii) that imposes | 26 | | severe pain or
otherwise imposes an inhumane burden on the |
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| 1 | | patient, and (iv)
for which initiating or continuing | 2 | | life-sustaining treatment,
in light of the patient's | 3 | | medical condition, provides only
minimal medical benefit.
| 4 | | The determination that a patient has a qualifying | 5 | | condition creates
no presumption regarding the application or | 6 | | non-application of life-sustaining
treatment. It is only after | 7 | | a determination by the attending physician that the patient | 8 | | has a qualifying condition that the
surrogate decision maker | 9 | | may consider whether or not to forgo
life-sustaining | 10 | | treatment. In making this decision, the surrogate
shall weigh | 11 | | the burdens on the patient of initiating or continuing
| 12 | | life-sustaining treatment against the benefits of that | 13 | | treatment.
| 14 | | "Qualified health care practitioner" means an individual
| 15 | | who has personally examined the patient and who is an Illinois
| 16 | | licensed physician, advanced practice registered nurse,
| 17 | | physician assistant, or resident with at least one year of
| 18 | | graduate or specialty training in this State who holds an
| 19 | | Illinois temporary license to practice medicine and is | 20 | | enrolled
in a residency program accredited by the Liaison | 21 | | Committee on
Graduate Medical Education or the Bureau of | 22 | | Professional
Education of the American Osteopathic | 23 | | Association. | 24 | | "Physician" means a physician licensed to practice | 25 | | medicine in all its branches in this State. | 26 | | "Qualified physician" means a physician licensed to |
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| 1 | | practice
medicine in all of its branches in Illinois who has | 2 | | personally
examined the patient.
| 3 | | "Surrogate decision maker" means an adult individual or
| 4 | | individuals who (i) have decisional capacity, (ii) are | 5 | | available
upon reasonable inquiry, (iii) are willing to make | 6 | | medical treatment
decisions on behalf of
a patient who lacks | 7 | | decisional capacity, and (iv) are identified by
the attending | 8 | | physician in accordance with the provisions of this
Act as the | 9 | | person or persons who are to make those decisions in
| 10 | | accordance with the provisions of this Act.
| 11 | | (Source: P.A. 95-331, eff. 8-21-07.)
| 12 | | (755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
| 13 | | Sec. 20. Private decision making process.
| 14 | | (a) Decisions whether to forgo life-sustaining or any | 15 | | other
form of medical treatment involving an adult patient | 16 | | with
decisional capacity may be made by that adult patient.
| 17 | | (b) Decisions whether to forgo life-sustaining treatment | 18 | | on
behalf of a patient without decisional capacity are lawful, | 19 | | without
resort to the courts or legal process, if the patient | 20 | | has a
qualifying condition and if the decisions are made in | 21 | | accordance
with one of the following paragraphs in this | 22 | | subsection and
otherwise meet the requirements of this Act:
| 23 | | (1) Decisions whether to forgo life-sustaining
| 24 | | treatment on behalf of a minor or an adult patient who | 25 | | lacks
decisional capacity may be made by a surrogate |
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| 1 | | decision maker
or makers in consultation with the | 2 | | attending physician, in the
order or priority provided in | 3 | | Section 25. A surrogate decision
maker shall make | 4 | | decisions for the adult patient conforming as
closely as | 5 | | possible to what the patient would have done or
intended | 6 | | under the circumstances, taking into account evidence
that | 7 | | includes, but is not limited to, the patient's personal,
| 8 | | philosophical, religious and moral beliefs and ethical | 9 | | values
relative to the purpose of life, sickness, medical | 10 | | procedures,
suffering, and death. Where possible, the | 11 | | surrogate shall
determine how the patient would have | 12 | | weighed the burdens and
benefits of initiating or | 13 | | continuing life-sustaining treatment
against the burdens | 14 | | and benefits of that treatment. In the
event an unrevoked | 15 | | advance directive, such as a living will, a declaration
| 16 | | for mental health treatment, or
a power of attorney for | 17 | | health care, is no longer valid due to
a technical | 18 | | deficiency or is not applicable to the patient's
| 19 | | condition, that document may be used as evidence of a
| 20 | | patient's wishes. The absence of a living will, | 21 | | declaration for mental
health treatment, or power of
| 22 | | attorney for health care shall not give rise to any
| 23 | | presumption as to the patient's preferences regarding the
| 24 | | initiation or continuation of life-sustaining procedures. | 25 | | If
the adult patient's wishes are unknown and remain | 26 | | unknown
after reasonable efforts to discern them or if the |
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| 1 | | patient is
a minor, the decision shall be made on the basis | 2 | | of the
patient's best interests as determined by the | 3 | | surrogate
decision maker. In determining the patient's | 4 | | best interests,
the surrogate shall weigh the burdens on | 5 | | and benefits to the
patient of initiating or continuing | 6 | | life-sustaining treatment
against the burdens and benefits | 7 | | of that treatment and shall
take into account any other | 8 | | information, including the views of
family and friends, | 9 | | that the surrogate decision maker believes
the patient | 10 | | would have considered if able to act for herself
or | 11 | | himself.
| 12 | | (2) Decisions whether to forgo life-sustaining
| 13 | | treatment on behalf of a minor or an adult patient who | 14 | | lacks decisional
capacity, but without any surrogate | 15 | | decision maker or guardian being
available determined | 16 | | after reasonable inquiry by the health
care provider, may | 17 | | be made by a court appointed guardian.
A court appointed | 18 | | guardian shall be treated as a surrogate for the
purposes | 19 | | of this Act.
| 20 | | (b-5) Decisions concerning medical treatment on behalf of | 21 | | a patient
without decisional capacity are lawful, without | 22 | | resort to the courts or legal
process, if the patient does not | 23 | | have a qualifying condition and if decisions
are made in | 24 | | accordance with one of the following paragraphs in this | 25 | | subsection
and otherwise meet the requirements of this Act:
| 26 | | (1) Decisions concerning medical treatment on behalf |
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| 1 | | of a minor or adult
patient who lacks decisional capacity | 2 | | may be made by a surrogate decision maker
or makers in | 3 | | consultation with the attending physician, in the order of
| 4 | | priority provided in Section 25 with the exception that | 5 | | decisions to forgo
life-sustaining treatment may be made | 6 | | only when a patient has a qualifying
condition. A | 7 | | surrogate decision maker shall make decisions for the | 8 | | patient
conforming as closely as possible to what the | 9 | | patient would have done or
intended under the | 10 | | circumstances, taking into account evidence that includes,
| 11 | | but is not limited to, the patient's personal, | 12 | | philosophical, religious, and
moral beliefs and ethical | 13 | | values relative to the purpose of life, sickness,
medical | 14 | | procedures, suffering, and death. In the event an | 15 | | unrevoked advance
directive, such as a living will, a | 16 | | declaration for mental health treatment, or
a power of | 17 | | attorney for health care, is no longer valid due to a | 18 | | technical
deficiency or is not applicable to the patient's | 19 | | condition, that document may
be used as evidence of a | 20 | | patient's wishes. The absence of a living will,
| 21 | | declaration for mental health treatment, or power of | 22 | | attorney for health care
shall not give rise to any | 23 | | presumption as to the patient's preferences
regarding any | 24 | | process. If the adult patient's wishes are unknown and | 25 | | remain
unknown after reasonable efforts to discern them or | 26 | | if the patient is a minor,
the decision shall be made on |
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| 1 | | the basis of the patient's best interests as
determined by | 2 | | the surrogate decision maker. In determining the patient's | 3 | | best
interests, the surrogate shall weigh the burdens on | 4 | | and benefits to the patient
of the treatment against the | 5 | | burdens and benefits of that treatment and shall
take into | 6 | | account any other information, including the views of | 7 | | family and
friends, that the surrogate decision maker | 8 | | believes the patient would have
considered if able to act | 9 | | for herself or himself.
| 10 | | (2) Decisions concerning medical treatment on behalf | 11 | | of a minor or adult
patient who lacks decisional capacity, | 12 | | but without any surrogate decision maker
or guardian being | 13 | | available as determined after reasonable inquiry by the
| 14 | | health care provider, may be made by a court appointed | 15 | | guardian. A court
appointed guardian shall be treated as a | 16 | | surrogate for the purposes of this
Act.
| 17 | | (c) For the purposes of this Act, a patient or surrogate
| 18 | | decision maker is presumed to have decisional capacity in the
| 19 | | absence of actual notice to the contrary without regard to | 20 | | advanced age.
With respect to a patient, a
diagnosis of mental | 21 | | illness or an intellectual disability, of itself, is
not a bar | 22 | | to a determination of decisional capacity. A
determination | 23 | | that an adult patient lacks decisional capacity shall
be made | 24 | | by the attending physician to a reasonable degree of
medical | 25 | | certainty. The determination shall be in writing in the
| 26 | | patient's medical record and shall set forth the attending |
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| 1 | | physician's opinion regarding the cause, nature, and duration | 2 | | of
the patient's lack of decisional capacity. Before | 3 | | implementation
of a decision by a surrogate decision maker to | 4 | | forgo
life-sustaining treatment, at least one other qualified | 5 | | health care practitioner physician
must concur in the | 6 | | determination that an adult patient lacks decisional
capacity. | 7 | | The concurring determination shall be made in writing in
the | 8 | | patient's medical record after personal examination of the
| 9 | | patient. The attending physician shall inform the patient that | 10 | | it
has been determined that the patient lacks decisional | 11 | | capacity and
that a surrogate decision maker will be making | 12 | | life-sustaining
treatment decisions on behalf of the patient. | 13 | | Moreover, the
patient shall be informed of the identity of the | 14 | | surrogate decision
maker and any decisions made by that | 15 | | surrogate. If the person
identified as the surrogate decision | 16 | | maker is not a court appointed
guardian and the patient | 17 | | objects to the statutory surrogate
decision maker or any | 18 | | decision made by that surrogate decision
maker, then the | 19 | | provisions of this Act shall not apply.
| 20 | | (d) A surrogate decision maker acting on behalf of
the | 21 | | patient shall express decisions to forgo life-sustaining
| 22 | | treatment to the attending physician and one adult witness who | 23 | | is
at least 18 years of age. This decision and the substance of | 24 | | any
known discussion before making the decision shall be | 25 | | documented by the
attending physician in the patient's medical | 26 | | record and signed by
the witness.
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| 1 | | (e) The existence of a qualifying condition shall be
| 2 | | documented in writing in the patient's medical record by the
| 3 | | attending physician and shall include its cause and nature, if
| 4 | | known. The written concurrence of another qualified health | 5 | | care practitioner physician is
also required.
| 6 | | (f) Once the provisions of this Act are complied with, the
| 7 | | attending physician shall thereafter promptly implement the
| 8 | | decision to forgo life-sustaining treatment on behalf of the
| 9 | | patient unless he or she believes that the surrogate decision | 10 | | maker
is not acting in accordance with his or her | 11 | | responsibilities under
this Act, or is unable to do so for | 12 | | reasons of conscience or other
personal views or beliefs.
| 13 | | (g) In the event of a patient's death as determined by a
| 14 | | physician, all life-sustaining treatment and other medical | 15 | | care is
to be terminated, unless the patient is an organ donor, | 16 | | in which
case appropriate organ donation treatment may be | 17 | | applied or continued
temporarily.
| 18 | | (h) A surrogate decision maker may execute a POLST | 19 | | portable medical orders form to forgo life sustaining | 20 | | treatment consistent with this Section.
| 21 | | (Source: P.A. 97-227, eff. 1-1-12.)
| 22 | | (755 ILCS 40/65)
| 23 | | Sec. 65. Department of Public Health Uniform POLST form.
| 24 | | (a) An individual of sound mind and having reached the age | 25 | | of majority or
having
obtained the status of an emancipated |
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| 1 | | person pursuant to the Emancipation of
Minors Act may execute | 2 | | a document (consistent with the Department of Public
Health | 3 | | Uniform POLST form described in Section 2310-600 of the | 4 | | Department of Public Health Powers and Duties Law of the
Civil | 5 | | Administrative Code of Illinois) directing that
resuscitating | 6 | | efforts shall not be implemented. This individual may also | 7 | | revoke the document at will. Such a document may also
be | 8 | | executed by a qualified an attending health care practitioner. | 9 | | If more than one practitioner shares that responsibility for | 10 | | the treatment and care of an individual , any of the qualified | 11 | | attending health care practitioners may act under this | 12 | | Section. Notwithstanding the existence of a do-not-resuscitate | 13 | | (DNR)
order or Department of Public Health Uniform POLST form, | 14 | | appropriate organ donation treatment may be applied or | 15 | | continued
temporarily in the event of the patient's death, in | 16 | | accordance with subsection
(g) of Section 20 of this Act, if | 17 | | the patient is an organ donor.
| 18 | | (a-5) Execution of a Department of Public Health Uniform | 19 | | POLST form is voluntary; no person can be required to execute | 20 | | the either form. Execution of a POLST form shall not be a
| 21 | | requirement for admission to any facility or a precondition to
| 22 | | the provision of services by any provider of health care
| 23 | | services. A person who has executed a Department of Public | 24 | | Health Uniform POLST form should review the form annually and | 25 | | when the person's condition changes. | 26 | | (b) Consent to a Department of Public Health Uniform POLST |
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| 1 | | form may be obtained from the individual, or from
another
| 2 | | person at the individual's direction, or from the individual's | 3 | | legal guardian,
agent under a
power of attorney for health | 4 | | care, or surrogate decision maker , and witnessed
by one | 5 | | individual 18 years of age or older, who attests that the | 6 | | individual, other person, guardian, agent, or surrogate (1) | 7 | | has had an opportunity to read the form; and (2) has signed the | 8 | | form or acknowledged his or her signature or mark on the form | 9 | | in the witness's presence .
| 10 | | (b-5) As used in this Section : , | 11 | | "attending health care practitioner" means an individual | 12 | | who (1) is an Illinois licensed physician, advanced practice | 13 | | registered nurse, physician assistant, or licensed resident | 14 | | after completion of one year in a program; (2) is selected by | 15 | | or assigned to the patient; and (3) has primary responsibility | 16 | | for treatment and care of the patient. | 17 | | "POLST" means practitioner orders for life-sustaining | 18 | | treatments. | 19 | | "POLST portable medical orders form" means a medical | 20 | | orders form, including, but not limited to, a Medical Orders | 21 | | for Scope of Treatment (MOST), Medical Orders for Life | 22 | | Sustaining Treatment (MOLST), Physician Orders for Scope of | 23 | | Treatment (POST), or Physician Orders for Life Sustaining | 24 | | Treatment (POLST) form, that is formally authorized by a state | 25 | | or territory within the United States. | 26 | | (c) Nothing in this Section shall be construed to affect |
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| 1 | | the ability of an individual to include instructions in an | 2 | | advance directive, such as a power of attorney for health | 3 | | care. The uniform form may, but need not, be in the form | 4 | | adopted by the
Department
of
Public Health pursuant to Section | 5 | | 2310-600 of the Department of Public Health
Powers and
Duties | 6 | | Law (20 ILCS 2310/2310-600).
Except as otherwise provided by | 7 | | law, emergency medical service personnel, a health care | 8 | | provider, or a health care facility shall comply with a | 9 | | Department of Public Health Uniform POLST form, National POLST | 10 | | form, another state's POLST portable medical orders form, or | 11 | | an out-of-hospital Do Not Resuscitate (DNR) order sanctioned | 12 | | by a state in the United States that: (i) has been executed by | 13 | | an adult; and (ii) is apparent and immediately available.
| 14 | | (d) A health care professional or health care provider may | 15 | | presume, in the
absence
of knowledge to the contrary, that a | 16 | | completed Department of Public Health
Uniform POLST form , | 17 | | National POLST form, another state's POLST portable medical | 18 | | orders form, or an out-of-hospital Do Not Resuscitate (DNR) | 19 | | order sanctioned by a state in the United States executed by an | 20 | | adult ,
or a copy of that form or a previous version of the | 21 | | uniform form, is valid. A health care professional or
health
| 22 | | care provider, or an employee of a health care professional or | 23 | | health care
provider, who in
good faith complies
with a | 24 | | cardiopulmonary resuscitation (CPR) or life-sustaining | 25 | | treatment order, Department of Public Health Uniform POLST | 26 | | form, or a previous version of the uniform form made in |
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| 1 | | accordance with this Act is not,
as a result of that | 2 | | compliance, subject to any criminal or civil liability,
except | 3 | | for willful and wanton misconduct, and
may not be found to have | 4 | | committed an act of unprofessional conduct. | 5 | | (d-5) Before voiding or revoking a Department of Public
| 6 | | Health Uniform POLST form, National POLST form, or another
| 7 | | state's POLST portable medical orders form executed by the | 8 | | individual, that individual's legally authorized
surrogate | 9 | | decision maker shall first: (1) engage in
consultation with a | 10 | | qualified health care practitioner; (2)
consult the patient's | 11 | | advance directive, if available; and (3)
make a good faith | 12 | | effort to act consistently, at all times,
with the patient's | 13 | | known wishes, using substituted judgment as
the standard. If | 14 | | the patient's wishes are unknown and remain
unknown after | 15 | | reasonable efforts to discern them, the decision
shall be made | 16 | | on the basis of the patient's best interests as
determined by | 17 | | the surrogate decision maker. A qualified
health care | 18 | | practitioner shall document the reasons for this
action in the | 19 | | patient's medical record. This process does not apply to an | 20 | | individual wanting to revoke his or her own POLST form. | 21 | | (e) Nothing in this Section or this amendatory Act of the | 22 | | 94th General Assembly or this amendatory Act of the 98th | 23 | | General Assembly shall be construed to affect the ability of a | 24 | | physician or other practitioner to make a do-not-resuscitate | 25 | | order.
| 26 | | (Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18 .)".
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