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Public Act 102-0140
Public Act 0140 102ND GENERAL ASSEMBLY
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Public Act 102-0140
| | SB0109 Enrolled | LRB102 10223 LNS 15547 b |
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| 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.)
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Effective Date: 1/1/2022
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