Public Act 102-0140
 
SB0109 EnrolledLRB102 10223 LNS 15547 b


  
    AN ACT concerning civil law.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  


 
 
    Section 5. The Health Care Surrogate Act is amended  by 
changing Sections 10, 20, and 65 as follows:
 



    (755 ILCS 40/10)  (from Ch. 110 1/2, par. 851-10)



    Sec. 10. Definitions. 

    "Adult" means a person who is (i) 18 years of age or older 
or (ii) an
emancipated minor under the Emancipation of
Minors 
Act.

    "Artificial nutrition and hydration" means supplying food 
and water through a
conduit, such as a tube or intravenous 
line, where the recipient is not
required to chew or swallow 
voluntarily, including, but not limited to,
nasogastric tubes, 
gastrostomies, jejunostomies, and
intravenous infusions.  
Artificial nutrition and hydration does not include
assisted 
feeding, such as spoon or bottle feeding.

    "Available" means that a person is not "unavailable".  A 
person is
unavailable if (i) the person's existence is not 
known, (ii) the person has
not been able to be contacted by 
telephone or mail, or (iii) the person
lacks decisional 
capacity, refuses to accept the office of surrogate, or is

unwilling to respond in a manner that indicates a choice among 
the
treatment matters at issue.

    "Attending physician" means the physician selected by or

assigned to the patient who has primary responsibility for

treatment and care of the patient and who is a licensed 
physician
in Illinois.  If more than one physician shares that

responsibility, any of those physicians may act as the 
attending
physician under this Act.

    "Close friend" means any person 18 years of age or older 
who
has exhibited special care and concern for the patient and 
who
presents an affidavit to the attending physician stating 
that he or
she (i) is a close friend of the patient, (ii) is 
willing and able to become
involved in the patient's health 
care, and (iii) has maintained such
regular contact with the 
patient as to be familiar with the
patient's activities, 
health, and religious and moral beliefs.  The
affidavit must 
also state facts and circumstances that demonstrate that

familiarity.

    "Death" means when, according to accepted medical 
standards,
there is (i) an irreversible cessation of 
circulatory and
respiratory functions or (ii) an irreversible 
cessation of all
functions of the entire brain, including the 
brain stem.

    "Decisional capacity" means the ability to understand and

appreciate the nature and consequences of a decision regarding

medical treatment or
forgoing life-sustaining treatment and 
the ability to reach and
communicate an informed decision in 
the matter as determined by the
attending physician.

    "Forgo life-sustaining treatment" means to withhold,

withdraw, or terminate all or any portion of life-sustaining

treatment with knowledge that the patient's death is likely to

result.

    "Guardian" means a court appointed guardian of the person 
who
serves as a representative of a minor or as a 
representative of a
person under legal disability.

    "Health care facility" means a type of health care 
provider
commonly known by a wide variety of titles, including 
but not
limited to, hospitals, medical centers, nursing homes,

rehabilitation centers, long term or tertiary care facilities, 
and
other facilities established to administer health care and 
provide
overnight stays in their ordinary course of business 
or practice.

    "Health care provider" means a person that is licensed,

certified, or otherwise authorized or permitted by the law of 
this
State to administer health care in the ordinary course of 
business
or practice of a profession, including, but not 
limited to,
physicians, nurses, health care facilities, and 
any employee,
officer, director, agent, or person under 
contract with such a
person.

    "Imminent" (as in "death is imminent") means a 
determination
made by the attending physician according to 
accepted medical
standards that death will occur in a 
relatively short period of
time, even if life-sustaining 
treatment is initiated or continued.

    "Life-sustaining treatment" means any medical treatment,

procedure, or intervention that, in the judgment of the 
attending
physician, when applied to a patient with a 
qualifying condition,
would not be effective to remove the 
qualifying condition
or would serve only to prolong the dying 
process.  Those
procedures can include, but are not limited to, 
assisted
ventilation, renal dialysis, surgical procedures, 
blood
transfusions, and the administration of drugs, 
antibiotics, and
artificial nutrition and hydration.

    "Minor" means an individual who is not an adult as defined 
in
this Act.

    "Parent" means a person who is the natural or adoptive 
mother
or father of the child and whose parental rights have 
not been
terminated by a court of law.

    "Patient" means an adult or minor individual, unless 
otherwise
specified, under the care or treatment of a licensed 
physician or
other health care provider.

    "Person" means an individual, a corporation, a business 
trust,
a trust, a partnership, an association, a government, a

governmental subdivision or agency, or any other legal entity.

    "Qualifying condition" means the existence of one or more 
of
the following conditions in a patient certified in writing 
in the
patient's medical record by the attending physician and 
by at least
one other qualified health care practitioner 
physician:


        (1) "Terminal condition" means an illness or injury 
    for
which there is no reasonable prospect of cure or 
    recovery,
death is imminent, and the application of 
    life-sustaining
treatment would only prolong the dying 
    process.


        (2) "Permanent unconsciousness" means a condition 
    that,
to a high degree of medical certainty, (i) will last

    permanently, without improvement, (ii) in which
thought, 
    sensation, purposeful action, social interaction, and

    awareness of self and environment are absent, and (iii) 
    for
which initiating or continuing life-sustaining 
    treatment, in
light of the patient's medical condition, 
    provides only
minimal medical benefit.


        (3) "Incurable or irreversible condition" means an

    illness or injury (i) for which there is no reasonable

    prospect of cure or recovery, (ii) that ultimately will 
    cause
the patient's death even if life-sustaining 
    treatment is
initiated or continued, (iii) that imposes 
    severe pain or
otherwise imposes an inhumane burden on the 
    patient, and (iv)
for which initiating or continuing 
    life-sustaining treatment,
in light of the patient's 
    medical condition, provides only
minimal medical benefit.

    The determination that a patient has a qualifying 
condition creates
no presumption regarding the application or 
non-application of life-sustaining
treatment.  It is only after 
a determination by the attending physician that the patient 
has a qualifying condition that the
surrogate decision maker 
may consider whether or not to forgo
life-sustaining 
treatment.  In making this decision, the surrogate
shall weigh 
the burdens on the patient of initiating or continuing

life-sustaining treatment against the benefits of that 
treatment.

    "Qualified health care practitioner" means an individual

who has personally examined the patient and who is an Illinois

licensed physician, advanced practice registered nurse,

physician assistant, or resident with at least one year of

graduate or specialty training in this State who holds an

Illinois temporary license to practice medicine and is 
enrolled
in a residency program accredited by the Liaison 
Committee on
Graduate Medical Education or the Bureau of 
Professional
Education of the American Osteopathic 
Association.
    "Physician" means a physician licensed to practice 
medicine in all its branches in this State.
    "Qualified physician" means a physician licensed to 
practice
medicine in all of its branches in Illinois who has 
personally
examined the patient.

    "Surrogate decision maker" means an adult individual or

individuals who (i) have decisional capacity, (ii) are 
available
upon reasonable inquiry, (iii) are willing to make 
medical treatment
decisions on behalf of
a patient who lacks 
decisional capacity, and (iv) are identified by
the attending 
physician in accordance with the provisions of this
Act as the 
person or persons who are to make those decisions in

accordance with the provisions of this Act.

(Source: P.A. 95-331, eff. 8-21-07.)

 
    (755 ILCS 40/20)  (from Ch. 110 1/2, par. 851-20)

    Sec. 20. Private decision making process.

    (a) Decisions whether to forgo life-sustaining or any 
other
form of medical treatment involving an adult patient 
with
decisional capacity may be made by that adult patient.


    (b) Decisions whether to forgo life-sustaining treatment 
on
behalf of a patient without decisional capacity are lawful, 
without
resort to the courts or legal process, if the patient 
has a
qualifying condition and if the decisions are made in 
accordance
with one of the following paragraphs in this 
subsection and
otherwise meet the requirements of this Act:


        (1) Decisions whether to forgo life-sustaining

    treatment on behalf of a minor or an adult patient who 
    lacks
decisional capacity may be made by a surrogate 
    decision maker
or makers in consultation with the 
    attending physician, in the
order or priority provided in 
    Section 25.  A surrogate decision
maker shall make 
    decisions for the adult patient conforming as
closely as 
    possible to what the patient would have done or
intended 
    under the circumstances, taking into account evidence
that 
    includes, but is not limited to, the patient's personal,

    philosophical, religious and moral beliefs and ethical 
    values
relative to the purpose of life, sickness, medical 
    procedures,
suffering, and death.  Where possible, the 
    surrogate shall
determine how the patient would have 
    weighed the burdens and
benefits of initiating or 
    continuing life-sustaining treatment
against the burdens 
    and benefits of that treatment.  In the
event an unrevoked 
    advance directive, such as a living will, a declaration

    for mental health treatment, or
a power of attorney for 
    health care, is no longer valid due to
a technical 
    deficiency or is not applicable to the patient's

    condition, that document may be used as evidence of a

    patient's wishes.  The absence of a living will, 
    declaration for mental
health treatment, or power of

    attorney for health care shall not give rise to any

    presumption as to the patient's preferences regarding the

    initiation or continuation of life-sustaining procedures.  
    If
the adult patient's wishes are unknown and remain 
    unknown
after reasonable efforts to discern them or if the 
    patient is
a minor, the decision shall be made on the basis 
    of the
patient's best interests as determined by the 
    surrogate
decision maker.  In determining the patient's 
    best interests,
the surrogate shall weigh the burdens on 
    and benefits to the
patient of initiating or continuing 
    life-sustaining treatment
against the burdens and benefits 
    of that treatment and shall
take into account any other 
    information, including the views of
family and friends, 
    that the surrogate decision maker believes
the patient 
    would have considered if able to act for herself
or 
    himself.


        (2) Decisions whether to forgo life-sustaining

    treatment on behalf of a minor or an adult patient who 
    lacks decisional
capacity, but without any surrogate 
    decision maker or guardian being
available determined 
    after reasonable inquiry by the health
care provider, may 
    be made by a court appointed guardian.
A court appointed 
    guardian shall be treated as a surrogate for the
purposes 
    of this Act.


    (b-5) Decisions concerning medical treatment on behalf of 
a patient
without decisional capacity are lawful, without 
resort to the courts or legal
process, if the patient does not 
have a qualifying condition and if decisions
are made in 
accordance with one of the following paragraphs in this 
subsection
and otherwise meet the requirements of this Act:


        (1) Decisions concerning medical treatment on behalf 
    of a minor or adult
patient who lacks decisional capacity 
    may be made by a surrogate decision maker
or makers in 
    consultation with the attending physician, in the order of

    priority provided in Section 25 with the exception that 
    decisions to forgo
life-sustaining treatment may be made 
    only when a patient has a qualifying
condition.  A 
    surrogate decision maker shall make decisions for the 
    patient
conforming as closely as possible to what the 
    patient would have done or
intended under the 
    circumstances, taking into account evidence that includes,

    but is not limited to, the patient's personal, 
    philosophical, religious, and
moral beliefs and ethical 
    values relative to the purpose of life, sickness,
medical 
    procedures, suffering, and death.  In the event an 
    unrevoked advance
directive, such as a living will, a 
    declaration for mental health treatment, or
a power of 
    attorney for health care, is no longer valid due to a 
    technical
deficiency or is not applicable to the patient's 
    condition, that document may
be used as evidence of a 
    patient's wishes.  The absence of a living will,

    declaration for mental health treatment, or power of 
    attorney for health care
shall not give rise to any 
    presumption as to the patient's preferences
regarding any 
    process.  If the adult patient's wishes are unknown and 
    remain
unknown after reasonable efforts to discern them or 
    if the patient is a minor,
the decision shall be made on 
    the basis of the patient's best interests as
determined by 
    the surrogate decision maker.  In determining the patient's 
    best
interests, the surrogate shall weigh the burdens on 
    and benefits to the patient
of the treatment against the 
    burdens and benefits of that treatment and shall
take into 
    account any other information, including the views of 
    family and
friends, that the surrogate decision maker 
    believes the patient would have
considered if able to act 
    for herself or himself.


        (2) Decisions concerning medical treatment on behalf 
    of a minor or adult
patient who lacks decisional capacity, 
    but without any surrogate decision maker
or guardian being 
    available as determined after reasonable inquiry by the

    health care provider, may be made by a court appointed 
    guardian.  A court
appointed guardian shall be treated as a 
    surrogate for the purposes of this
Act.


    (c) For the purposes of this Act, a patient or surrogate

decision maker is presumed to have decisional capacity in the

absence of actual notice to the contrary without regard to 
advanced age.
With respect to a patient, a
diagnosis of mental 
illness or an intellectual disability, of itself, is
not a bar 
to a determination of decisional capacity.  A
determination 
that an adult patient lacks decisional capacity shall
be made 
by the attending physician to a reasonable degree of
medical 
certainty.  The determination shall be in writing in the

patient's medical record and shall set forth the attending 
physician's opinion regarding the cause, nature, and duration 
of
the patient's lack of decisional capacity.  Before 
implementation
of a decision by a surrogate decision maker to 
forgo
life-sustaining treatment, at least one other qualified 
health care practitioner physician
must concur in the 
determination that an adult patient lacks decisional
capacity.  
The concurring determination shall be made in writing in
the 
patient's medical record after personal examination of the

patient.  The attending physician shall inform the patient that 
it
has been determined that the patient lacks decisional 
capacity and
that a surrogate decision maker will be making 
life-sustaining
treatment decisions on behalf of the patient.  
Moreover, the
patient shall be informed of the identity of the 
surrogate decision
maker and any decisions made by that 
surrogate.  If the person
identified as the surrogate decision 
maker is not a court appointed
guardian and the patient 
objects to the statutory surrogate
decision maker or any 
decision made by that surrogate decision
maker, then the 
provisions of this Act shall not apply.


    (d) A surrogate decision maker acting on behalf of
the 
patient shall express decisions to forgo life-sustaining

treatment to the attending physician and one adult witness who 
is
at least 18 years of age.  This decision and the substance of 
any
known discussion before making the decision shall be 
documented by the
attending physician in the patient's medical 
record and signed by
the witness.


    (e) The existence of a qualifying condition shall be

documented in writing in the patient's medical record by the

attending physician and shall include its cause and nature, if

known.  The written concurrence of another qualified health 
care practitioner physician is
also required.


    (f) Once the provisions of this Act are complied with, the

attending physician shall thereafter promptly implement the

decision to forgo life-sustaining treatment on behalf of the

patient unless he or she believes that the surrogate decision 
maker
is not acting in accordance with his or her 
responsibilities under
this Act, or is unable to do so for 
reasons of conscience or other
personal views or beliefs.


    (g) In the event of a patient's death as determined by a

physician, all life-sustaining treatment and other medical 
care is
to be terminated, unless the patient is an organ donor, 
in which
case appropriate organ donation treatment may be 
applied or continued
temporarily.

    (h) A surrogate decision maker may execute a POLST 
portable medical orders form to forgo life-sustaining 
treatment consistent with this Section. 

(Source: P.A. 97-227, eff. 1-1-12.)

 
    (755 ILCS 40/65)

    Sec. 65. Department of Public Health Uniform POLST form.

    (a) An individual of sound mind and having reached the age 
of majority or
having
obtained the status of an emancipated 
person pursuant to the Emancipation of

Minors Act may execute 
a document (consistent with the Department of Public
Health 
Uniform POLST form  described in Section 2310-600 of the 
Department of Public Health Powers and Duties Law of the
Civil 
Administrative Code of Illinois) directing that
resuscitating 
efforts shall not be implemented. This individual may also 
revoke the document at will.  Such a document may also
be 
executed by a qualified an attending health care practitioner.  
If more than one practitioner shares that responsibility for 
the treatment and care of an individual, any of the qualified 
attending health care practitioners may act under this 
Section. Notwithstanding the existence of a do-not-resuscitate 
(DNR)
 order or Department of Public Health Uniform POLST form, 
appropriate organ donation treatment may be applied or 
continued
temporarily in the event of the patient's death, in 
accordance with subsection
(g) of Section 20 of this Act, if 
the patient is an organ donor.


    (a-5) Execution of a Department of Public Health Uniform 
POLST form is voluntary; no person can be required to execute 
the either form. Execution of a POLST form shall not be a

requirement for admission to any facility or a precondition to

the provision of services by any provider of health care

services.  A person who has executed a  Department of Public 
Health Uniform POLST form should review the form annually and 
when the person's condition changes.
    (b) Consent to a Department of Public Health Uniform POLST 
form may be obtained from the individual, or from
another

person at the individual's direction, or from the individual's 
legal guardian,
agent under a
power of attorney for health 
care, or surrogate decision maker, and witnessed
by one 
individual 18 years of age or older, who attests that the 
individual, other person, guardian, agent, or surrogate (1) 
has had an opportunity to read the form; and (2)  has signed the 
form or acknowledged his or her signature or mark on the form 
in the witness's presence.


    (b-5) As used in this Section: , 
    "attending health care practitioner" means an individual 
who (1) is an Illinois licensed physician, advanced practice 
registered nurse, physician assistant, or licensed resident 
after completion of one year in a program; (2) is selected by 
or assigned to the patient; and (3) has primary responsibility 
for treatment and care of the patient. 
    "POLST" means practitioner orders for life-sustaining 
treatments. 
    "POLST portable medical orders form" means a medical 
orders form, including, but not limited to, a Medical Orders 
for Scope of Treatment (MOST), Medical Orders for Life 
Sustaining Treatment (MOLST), Physician Orders for Scope of 
Treatment (POST), or Physician Orders for Life Sustaining 
Treatment (POLST) form, that is formally authorized by a state 
or territory within the United States. 
    (c) Nothing in this Section shall be construed to affect 
the ability of an individual to include instructions in an 
advance directive, such as a power of attorney for health 
care. The uniform form may, but need not, be in the form 
adopted by the
Department
of
Public Health pursuant to Section 
2310-600 of the Department of Public Health
Powers and
Duties 
Law (20 ILCS 2310/2310-600).
Except as otherwise provided by 
law, emergency medical service personnel, a health care 
provider, or a health care facility shall comply with a 
Department of Public Health Uniform POLST form, National POLST 
form, another state's POLST portable medical orders form, or 
an out-of-hospital Do Not Resuscitate (DNR) order sanctioned 
by a state in the United States that: (i) has been executed by 
an adult; and (ii) is apparent and immediately available.

    (d) A health care professional or health care provider may 
presume, in the
absence
of knowledge to the contrary, that a 
completed Department of Public Health
Uniform POLST form, 
National POLST form, another state's POLST portable medical 
orders form, or an out-of-hospital Do Not Resuscitate (DNR) 
order sanctioned by a state in the United States executed by an 
adult,

or a copy of that form or a previous version of the 
uniform form, is valid.  A health care professional or
health

care provider, or an employee of a health care professional or 
health care
provider, who in
good faith complies
with a 
cardiopulmonary resuscitation (CPR) or life-sustaining 
treatment order, Department of Public Health Uniform POLST 
form, or a previous version of the uniform form made in 
accordance with this Act is not,
as a result of that 
compliance, subject to any criminal or civil liability,
except 
for willful and wanton misconduct, and
may not be found to have 
committed an act of unprofessional conduct.
    (d-5) Before voiding or revoking a Department of Public

Health Uniform POLST form, National POLST form, or another

state's POLST portable medical orders form executed by the 
individual, that individual's legally authorized
surrogate 
decision maker shall first: (1) engage in
consultation with a 
qualified health care practitioner; (2)
consult the patient's 
advance directive, if available; and (3)
make a good faith 
effort to act consistently, at all times,
with the patient's 
known wishes, using substituted judgment as
the standard. If 
the patient's wishes are unknown and remain
unknown after 
reasonable efforts to discern them, the decision
shall be made 
on the basis of the patient's best interests as
determined by 
the surrogate decision maker. A qualified
health care 
practitioner shall document the reasons for this
action in the 
patient's medical record. This process does not apply to an 
individual wanting to revoke his or her own POLST form.
    (e) Nothing in this Section or this amendatory Act of the 
94th General Assembly or this amendatory Act of the 98th 
General Assembly shall be construed to affect the ability of a 
physician or other practitioner to make a do-not-resuscitate 
order.


(Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18.)