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90_SB1721
755 ILCS 40/10 from Ch. 110 1/2, par. 851-10
755 ILCS 40/20 from Ch. 110 1/2, par. 851-20
755 ILCS 40/25 from Ch. 110 1/2, par. 851-25
Amends the Health Care Surrogate Act. Adds definitions.
Provides that certain information must be provided to a
patient orally and in writing before implementation of any
treatment decision. Provides for a patient's right to object
to the appointment or identity of a surrogate decision maker
or to any decision to be made by the surrogate. Restricts
the power of a surrogate to make treatment decisions to a
period of 90 days unless, before the expiration of that
period, it is determined that the patient continues to lack
decisional capacity. Provides that in no event shall the
power of a surrogate extend for a period longer than one
year, and provides for continued treatment after that period
if authorized by other means.
LRB9009523DJcd
LRB9009523DJcd
1 AN ACT to amend the Health Care Surrogate Act by changing
2 Sections 10, 20, and 25.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Health Care Surrogate Act is amended by
6 changing Sections 10, 20, and 25 as follows:
7 (755 ILCS 40/10) (from Ch. 110 1/2, par. 851-10)
8 Sec. 10. Definitions.
9 "Adult" means a person who is (i) 18 years of age or
10 older or (ii) an emancipated minor under the Emancipation of
11 Mature Minors Act.
12 "Artificial nutrition and hydration" means supplying food
13 and water through a conduit, such as a tube or intravenous
14 line, where the recipient is not required to chew or swallow
15 voluntarily, including, but not limited to, nasogastric
16 tubes, gastrostomies, jejunostomies, and intravenous
17 infusions. Artificial nutrition and hydration does not
18 include assisted feeding, such as spoon or bottle feeding.
19 "Available" means that a person is not "unavailable". A
20 person is unavailable if (i) the person's existence is not
21 known, (ii) the person has not been able to be contacted by
22 telephone or mail, or (iii) the person lacks decisional
23 capacity, refuses to accept the office of surrogate, or is
24 unwilling to respond in a manner that indicates a choice
25 among the treatment matters at issue.
26 "Attending physician" means the physician selected by or
27 assigned to the patient who has primary responsibility for
28 treatment and care of the patient and who is a licensed
29 physician in Illinois. If more than one physician shares
30 that responsibility, any of those physicians may act as the
31 attending physician under this Act.
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1 "Clinical psychologist" has the same meaning as in
2 Section 1-103 of the Mental Health and Developmental
3 Disabilities Code.
4 "Close friend" means any person 18 years of age or older
5 who has exhibited special care and concern for the patient
6 and who presents an affidavit to the attending physician
7 stating that he or she (i) is a close friend of the patient,
8 (ii) is willing and able to become involved in the patient's
9 health care, and (iii) has maintained such regular contact
10 with the patient as to be familiar with the patient's
11 activities, health, and religious and moral beliefs. The
12 affidavit must also state facts and circumstances that
13 demonstrate that familiarity.
14 "Death" means when, according to accepted medical
15 standards, there is (i) an irreversible cessation of
16 circulatory and respiratory functions or (ii) an irreversible
17 cessation of all functions of the entire brain, including the
18 brain stem.
19 "Decisional capacity" means the ability to understand and
20 appreciate the nature and consequences of a decision
21 regarding medical treatment or forgoing life-sustaining
22 treatment and the ability to reach and communicate an
23 informed decision in the matter as determined by the
24 attending physician.
25 "Developmental disability" has the same meaning as in
26 Section 1-106 of the Mental Health and Developmental
27 Disabilities Code.
28 "Forgo life-sustaining treatment" means to withhold,
29 withdraw, or terminate all or any portion of life-sustaining
30 treatment with knowledge that the patient's death is likely
31 to result.
32 "Guardian" means a court appointed guardian of the person
33 who serves as a representative of a minor or as a
34 representative of a person under legal disability.
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1 "Health care facility" means a type of health care
2 provider commonly known by a wide variety of titles,
3 including but not limited to, hospitals, medical centers,
4 nursing homes, rehabilitation centers, long term or tertiary
5 care facilities, and other facilities established to
6 administer health care and provide overnight stays in their
7 ordinary course of business or practice.
8 "Health care provider" means a person that is licensed,
9 certified, or otherwise authorized or permitted by the law of
10 this State to administer health care in the ordinary course
11 of business or practice of a profession, including, but not
12 limited to, physicians, nurses, health care facilities, and
13 any employee, officer, director, agent, or person under
14 contract with such a person.
15 "Imminent" (as in "death is imminent") means a
16 determination made by the attending physician according to
17 accepted medical standards that death will occur in a
18 relatively short period of time, even if life-sustaining
19 treatment is initiated or continued.
20 "Life-sustaining treatment" means any medical treatment,
21 procedure, or intervention that, in the judgment of the
22 attending physician, when applied to a patient with a
23 qualifying condition, would not be effective to remove the
24 qualifying condition or would serve only to prolong the dying
25 process. Those procedures can include, but are not limited
26 to, assisted ventilation, renal dialysis, surgical
27 procedures, blood transfusions, and the administration of
28 drugs, antibiotics, and artificial nutrition and hydration.
29 "Medical treatment" means those services pertaining to
30 medical care that are performed by any health care provider.
31 "Medical treatment" does not, however, include the
32 administration of psychotropic medication or
33 electro-convulsive therapy or admission to a mental health
34 facility as provided for in the Mental Health and
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1 Developmental Disabilities Code.
2 "Mental illness" has the same meaning as in the Mental
3 Health and Developmental Disabilities Code.
4 "Minor" means an individual who is not an adult as
5 defined in this Act.
6 "Parent" means a person who is the natural or adoptive
7 mother or father of the child and whose parental rights have
8 not been terminated by a court of law.
9 "Patient" means an adult or minor individual, unless
10 otherwise specified, under the care or treatment of a
11 licensed physician or other health care provider.
12 "Person" means an individual, a corporation, a business
13 trust, a trust, a partnership, an association, a government,
14 a governmental subdivision or agency, or any other legal
15 entity.
16 "Psychiatrist" has the same meaning as in Section 1-121
17 of the Mental Health and Developmental Disabilities Code.
18 "Qualifying condition" means the existence of one or more
19 of the following conditions in a patient certified in writing
20 in the patient's medical record by the attending physician
21 and by at least one other qualified physician:
22 (1) "Terminal condition" means an illness or injury
23 for which there is no reasonable prospect of cure or
24 recovery, death is imminent, and the application of
25 life-sustaining treatment would only prolong the dying
26 process.
27 (2) "Permanent unconsciousness" means a condition
28 that, to a high degree of medical certainty, (i) will
29 last permanently, without improvement, (ii) in which
30 thought, sensation, purposeful action, social
31 interaction, and awareness of self and environment are
32 absent, and (iii) for which initiating or continuing
33 life-sustaining treatment, in light of the patient's
34 medical condition, provides only minimal medical benefit.
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1 (3) "Incurable or irreversible condition" means an
2 illness or injury (i) for which there is no reasonable
3 prospect of cure or recovery, (ii) that ultimately will
4 cause the patient's death even if life-sustaining
5 treatment is initiated or continued, (iii) that imposes
6 severe pain or otherwise imposes an inhumane burden on
7 the patient, and (iv) for which initiating or continuing
8 life-sustaining treatment, in light of the patient's
9 medical condition, provides only minimal medical benefit.
10 The determination that a patient has a qualifying
11 condition creates no presumption regarding the application or
12 non-application of life-sustaining treatment. It is only
13 after a determination by the attending physician that the
14 patient has a qualifying condition that the surrogate
15 decision maker may consider whether or not to forgo
16 life-sustaining treatment. In making this decision, the
17 surrogate shall weigh the burdens on the patient of
18 initiating or continuing life-sustaining treatment against
19 the benefits of that treatment.
20 "Qualified physician" means a physician licensed to
21 practice medicine in all of its branches in Illinois who has
22 personally examined the patient.
23 "Surrogate decision maker" means an adult individual or
24 individuals who (i) have decisional capacity, (ii) are
25 available upon reasonable inquiry, (iii) are willing to make
26 medical treatment decisions on behalf of a patient who lacks
27 decisional capacity, and (iv) are identified by the attending
28 physician in accordance with the provisions of this Act as
29 the person or persons who are to make those decisions in
30 accordance with the provisions of this Act.
31 (Source: P.A. 90-246, eff. 1-1-98; 90-538, eff. 12-1-97;
32 revised 1-6-98.)
33 (755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
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1 Sec. 20. Private decision making process.
2 (a) Decisions whether to forgo life-sustaining or any
3 other form of medical treatment involving an adult patient
4 with decisional capacity may be made by that adult patient.
5 (b) Decisions whether to forgo life-sustaining treatment
6 on behalf of a patient without decisional capacity are
7 lawful, without resort to the courts or legal process, if the
8 patient has a qualifying condition and if the decisions are
9 made in accordance with one of the following paragraphs in
10 this subsection and otherwise meet the requirements of this
11 Act:
12 (1) Decisions whether to forgo life-sustaining
13 treatment on behalf of a minor or an adult patient who
14 lacks decisional capacity may be made by a surrogate
15 decision maker or makers in consultation with the
16 attending physician, in the order or priority provided in
17 Section 25. A surrogate decision maker shall make
18 decisions for the adult patient conforming as closely as
19 possible to what the patient would have done or intended
20 under the circumstances, taking into account evidence
21 that includes, but is not limited to, the patient's
22 personal, philosophical, religious and moral beliefs and
23 ethical values relative to the purpose of life, sickness,
24 medical procedures, suffering, and death. Where
25 possible, the surrogate shall determine how the patient
26 would have weighed the burdens and benefits of initiating
27 or continuing life-sustaining treatment against the
28 burdens and benefits of that treatment. In the event an
29 unrevoked advance directive, such as a living will, a
30 declaration for mental health treatment, or a power of
31 attorney for health care, is no longer valid due to a
32 technical deficiency or is not applicable to the
33 patient's condition, that document may be used as
34 evidence of a patient's wishes. The absence of a living
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1 will, declaration for mental health treatment, or power
2 of attorney for health care shall not give rise to any
3 presumption as to the patient's preferences regarding the
4 initiation or continuation of life-sustaining procedures.
5 If the adult patient's wishes are unknown and remain
6 unknown after reasonable efforts to discern them or if
7 the patient is a minor, the decision shall be made on the
8 basis of the patient's best interests as determined by
9 the surrogate decision maker. In determining the
10 patient's best interests, the surrogate shall weigh the
11 burdens on and benefits to the patient of initiating or
12 continuing life-sustaining treatment against the burdens
13 and benefits of that treatment and shall take into
14 account any other information, including the views of
15 family and friends, that the surrogate decision maker
16 believes the patient would have considered if able to act
17 for herself or himself.
18 (2) Decisions whether to forgo life-sustaining
19 treatment on behalf of a minor or an adult patient who
20 lacks decisional capacity, but without any surrogate
21 decision maker or guardian being available determined
22 after reasonable inquiry by the health care provider, may
23 be made by a court appointed guardian. A court appointed
24 guardian shall be treated as a surrogate for the purposes
25 of this Act.
26 (b-5) Decisions concerning medical treatment on behalf
27 of a patient without decisional capacity are lawful, without
28 resort to the courts or legal process, if the patient does
29 not have a qualifying condition and if decisions are made in
30 accordance with one of the following paragraphs in this
31 subsection and otherwise meet the requirements of this Act:
32 (1) Decisions concerning medical treatment on
33 behalf of a minor or adult patient who lacks decisional
34 capacity may be made by a surrogate decision maker or
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1 makers in consultation with the attending physician, in
2 the order of priority provided in Section 25 with the
3 exception that decisions to forgo life-sustaining
4 treatment may be made only when a patient has a
5 qualifying condition. A surrogate decision maker shall
6 make decisions for the patient conforming as closely as
7 possible to what the patient would have done or intended
8 under the circumstances, taking into account evidence
9 that includes, but is not limited to, the patient's
10 personal, philosophical, religious, and moral beliefs and
11 ethical values relative to the purpose of life, sickness,
12 medical procedures, suffering, and death. In the event
13 an unrevoked advance directive, such as a living will, a
14 declaration for mental health treatment, or a power of
15 attorney for health care, is no longer valid due to a
16 technical deficiency or is not applicable to the
17 patient's condition, that document may be used as
18 evidence of a patient's wishes. The absence of a living
19 will, declaration for mental health treatment, or power
20 of attorney for health care shall not give rise to any
21 presumption as to the patient's preferences regarding any
22 process. If the adult patient's wishes are unknown and
23 remain unknown after reasonable efforts to discern them
24 or if the patient is a minor, the decision shall be made
25 on the basis of the patient's best interests as
26 determined by the surrogate decision maker. In
27 determining the patient's best interests, the surrogate
28 shall weigh the burdens on and benefits to the patient of
29 the treatment against the burdens and benefits of that
30 treatment and shall take into account any other
31 information, including the views of family and friends,
32 that the surrogate decision maker believes the patient
33 would have considered if able to act for herself or
34 himself.
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1 (2) Decisions concerning medical treatment on
2 behalf of a minor or adult patient who lacks decisional
3 capacity, but without any surrogate decision maker or
4 guardian being available as determined after reasonable
5 inquiry by the health care provider, may be made by a
6 court appointed guardian. A court appointed guardian
7 shall be treated as a surrogate for the purposes of this
8 Act.
9 (c) For the purposes of this Act, a patient or surrogate
10 decision maker is presumed to have decisional capacity in the
11 absence of actual notice to the contrary without regard to
12 advanced age. With respect to a patient, a diagnosis of
13 mental illness or mental retardation, of itself, is not a bar
14 to a determination of decisional capacity. A determination
15 that an adult patient lacks decisional capacity shall be made
16 by the attending physician to a reasonable degree of medical
17 certainty. The determination shall be in writing in the
18 patient's medical record and shall set forth the attending
19 physician's opinion regarding the cause, nature, and duration
20 of the patient's lack of decisional capacity. Before
21 implementation of a decision by a surrogate decision maker to
22 forgo life-sustaining treatment, at least one other qualified
23 physician must concur in the determination that an adult
24 patient lacks decisional capacity. Before implementation of a
25 decision by a surrogate that is based on a decision that an
26 adult patient lacks decisional capacity due to mental
27 illness, mental deterioration, or a developmental disability,
28 a psychiatrist or clinical psychologist must concur in the
29 determination that the patient lacks decisional capacity. The
30 concurring determination shall be made in writing in the
31 patient's medical record after personal examination of the
32 patient.
33 (c-5) Before the implementation of any treatment
34 decision, the attending physician shall inform the patient
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1 orally and in writing of each of the following:
2 (1) That it has been determined that the patient
3 lacks decisional capacity. and
4 (2) That a surrogate decision maker will be making
5 life-sustaining treatment decisions on behalf of the
6 patient.
7 (3) Moreover, the patient shall be informed of The
8 identity of the surrogate decision maker. and
9 (4) The nature of any decisions to be made by that
10 surrogate.
11 (5) That if the person identified as the surrogate
12 decision maker is not a court appointed guardian and the
13 patient objects to the statutory surrogate decision maker
14 or any decision made by that surrogate decision maker,
15 then the provisions of this Act shall not apply.
16 If a patient communicates in any manner his or her
17 objection to the appointment or identity of the surrogate
18 decision maker or to any decision to be made by the surrogate
19 decision maker, then the provisions of this Act shall not
20 apply. This communication may be made to the surrogate
21 decision maker, the attending physician, or any medical
22 personnel with the responsibility of implementing a treatment
23 decision made by the surrogate. A patient who lacks
24 decisional capacity shall, nonetheless, have the right to
25 object as provided in this Section. The attending physician
26 shall document in writing in the patient's medical record
27 that the patient does not object to any treatment
28 administered under this Act. Nothing in this Section shall
29 affect the ability of a guardian to make decisions as
30 authorized under the Probate Act of 1975, limit effectiveness
31 of decisions made under the Mental Health Treatment
32 Preference Declaration Act, or limit the authority of a court
33 to authorize treatment under any other statute.
34 (d) A surrogate decision maker acting on behalf of the
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1 patient shall express decisions to forgo life-sustaining
2 treatment to the attending physician and one adult witness
3 who is at least 18 years of age. This decision and the
4 substance of any known discussion before making the decision
5 shall be documented by the attending physician in the
6 patient's medical record and signed by the witness.
7 (e) The existence of a qualifying condition shall be
8 documented in writing in the patient's medical record by the
9 attending physician and shall include its cause and nature,
10 if known. The written concurrence of another qualified
11 physician is also required.
12 (f) Once the provisions of this Act are complied with,
13 the attending physician shall thereafter promptly implement
14 the decision to forgo life-sustaining treatment on behalf of
15 the patient unless he or she believes that the surrogate
16 decision maker is not acting in accordance with his or her
17 responsibilities under this Act, or is unable to do so for
18 reasons of conscience or other personal views or beliefs.
19 (g) In the event of a patient's death as determined by a
20 physician, all life-sustaining treatment and other medical
21 care is to be terminated, unless the patient is an organ
22 donor, in which case appropriate organ donation treatment may
23 be continued temporarily.
24 (Source: P.A. 90-246, eff. 1-1-98.)
25 (755 ILCS 40/25) (from Ch. 110 1/2, par. 851-25)
26 Sec. 25. Surrogate decision making.
27 (a) When a patient lacks decisional capacity, the health
28 care provider must make a reasonable inquiry as to the
29 availability and authority of a health care agent under the
30 Powers of Attorney for Health Care Law. When no health care
31 agent is authorized and available, the health care provider
32 must make a reasonable inquiry as to the availability of
33 possible surrogates listed in items (1) through (4) of this
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1 subsection. The surrogate decision makers, as identified by
2 the attending physician, are then authorized to make
3 decisions as follows: (i) for patients who lack decisional
4 capacity and do not have a qualifying condition, medical
5 treatment decisions may be made in accordance with
6 subsection (b-5) of Section 20; and (ii) for patients who
7 lack decisional capacity and have a qualifying condition,
8 medical treatment decisions including whether to forgo
9 life-sustaining treatment on behalf of the patient may be
10 made without court order or judicial involvement in the
11 following order of priority:
12 (1) the patient's guardian of the person;
13 (2) the patient's spouse;
14 (3) any adult son or daughter of the patient;
15 (4) either parent of the patient;
16 (5) any adult brother or sister of the patient;
17 (6) any adult grandchild of the patient;
18 (7) a close friend of the patient;
19 (8) the patient's guardian of the estate.
20 The health care provider shall have the right to rely on
21 any of the above surrogates if the provider believes after
22 reasonable inquiry that neither a health care agent under the
23 Powers of Attorney for Health Care Law nor a surrogate of
24 higher priority is available.
25 Where there are multiple surrogate decision makers at the
26 same priority level in the hierarchy, it shall be the
27 responsibility of those surrogates to make reasonable efforts
28 to reach a consensus as to their decision on behalf of the
29 patient regarding the forgoing of life-sustaining treatment.
30 If 2 or more surrogates who are in the same category and have
31 equal priority indicate to the attending physician that they
32 disagree about the health care matter at issue, a majority of
33 the available persons in that category (or the parent with
34 custodial rights) shall control, unless the minority (or the
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1 parent without custodial rights) initiates guardianship
2 proceedings in accordance with the Probate Act of 1975. No
3 health care provider or other person is required to seek
4 appointment of a guardian.
5 (b) After a surrogate has been identified, the name,
6 address, telephone number, and relationship of that person to
7 the patient shall be recorded in the patient's medical
8 record.
9 (c) Any surrogate who becomes unavailable for any reason
10 may be replaced by applying the provisions of Section 25 in
11 the same manner as for the initial choice of surrogate.
12 (d) In the event an individual of a higher priority to
13 an identified surrogate becomes available and willing to be
14 the surrogate, the individual with higher priority may be
15 identified as the surrogate. In the event an individual in a
16 higher, a lower, or the same priority level or a health care
17 provider seeks to challenge the priority of or the
18 life-sustaining treatment decision of the recognized
19 surrogate decision maker, the challenging party may initiate
20 guardianship proceedings in accordance with the Probate Act
21 of 1975.
22 (e) The surrogate decision maker shall have the same
23 right as the patient to receive medical information and
24 medical records and to consent to disclosure.
25 (f) In no event shall the power of a surrogate decision
26 maker to make treatment decisions under this Act continue
27 more than 90 days unless, before the expiration of that
28 90-day period, it is determined, pursuant to the procedures
29 set forth in subsection (c) of Section 20, that the patient
30 continues to lack decisional capacity.
31 (g) In no event shall the power of a surrogate decision
32 maker to make treatment decisions under this Act extend for a
33 period longer than one year. If, at the expiration of one
34 year, the patient continues to lack decisional capacity,
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1 treatment may continue only as authorized by a court
2 appointed guardian, through the decisions made under a
3 durable power of attorney, pursuant to the Mental Health
4 Treatment Preference Declaration Act, or though some other
5 authority granted by Illinois Law.
6 (Source: P.A. 90-246, eff. 1-1-98.)