Full Text of SB3524 101st General Assembly
SB3524 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 SB3524 Introduced 2/14/2020, by Sen. Sara Feigenholtz SYNOPSIS AS INTRODUCED: |
| 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 40/65 | |
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Amends the Health Care Surrogate Act. Changes certain uses of the term "qualified physician" to "qualified health care practitioner". Provides that before voiding or revoking a uniform practitioner orders for life-sustaining treatment (POLST) form, National POLST form, or another state's POLST Paradigm portable medical orders form consented to by the individual, that individual's legally authorized surrogate decision maker shall first: engage in consultation with the attending health care practitioner; consult the patient's advance directive, if available; and make a good faith effort to act consistently, at all times, with the patient's known wishes, or, if the patient's wishes are not known, using substituted judgment as the standard. Provides that a health care provider facility shall comply with a POLST form, National POLST form, another state's POLST Paradigm portable medical orders form, or an out-of-hospital Do Not Resuscitate (DNR) order sanctioned by a State in the United States that: has been executed by an adult; and is apparent and immediately available.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 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 | 17 | | feeding, such as spoon or bottle feeding.
| 18 | | "Available" means that a person is not "unavailable". A | 19 | | person is
unavailable if (i) the person's existence is not | 20 | | known, (ii) the person has
not been able to be contacted by | 21 | | telephone or mail, or (iii) the person
lacks decisional | 22 | | capacity, refuses to accept the office of surrogate, or is
| 23 | | unwilling to respond in a manner that indicates a choice among |
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| 1 | | the
treatment matters at issue.
| 2 | | "Attending physician" means the physician selected by or
| 3 | | assigned to the patient who has primary responsibility for
| 4 | | treatment and care of the patient and who is a licensed | 5 | | physician
in Illinois. If more than one physician shares that
| 6 | | responsibility, any of those physicians may act as the | 7 | | attending
physician under this Act.
| 8 | | "Close friend" means any person 18 years of age or older | 9 | | who
has exhibited special care and concern for the patient and | 10 | | who
presents an affidavit to the attending physician stating | 11 | | that he or
she (i) is a close friend of the patient, (ii) is | 12 | | willing and able to become
involved in the patient's health | 13 | | care, and (iii) has maintained such
regular contact with the | 14 | | patient as to be familiar with the
patient's activities, | 15 | | health, and religious and moral beliefs. The
affidavit must | 16 | | also state facts and circumstances that demonstrate that
| 17 | | familiarity.
| 18 | | "Death" means when, according to accepted medical | 19 | | standards,
there is (i) an irreversible cessation of | 20 | | circulatory and
respiratory functions or (ii) an irreversible | 21 | | cessation of all
functions of the entire brain, including the | 22 | | brain stem.
| 23 | | "Decisional capacity" means the ability to understand and
| 24 | | appreciate the nature and consequences of a decision regarding
| 25 | | medical treatment or
forgoing life-sustaining treatment and | 26 | | the ability to reach and
communicate an informed decision in |
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| 1 | | the matter as determined by the
attending physician.
| 2 | | "Forgo life-sustaining treatment" means to withhold,
| 3 | | withdraw, or terminate all or any portion of life-sustaining
| 4 | | treatment with knowledge that the patient's death is likely to
| 5 | | result.
| 6 | | "Guardian" means a court appointed guardian of the person | 7 | | who
serves as a representative of a minor or as a | 8 | | representative of a
person under legal disability.
| 9 | | "Health care facility" means a type of health care provider
| 10 | | commonly known by a wide variety of titles, including but not
| 11 | | limited to, hospitals, medical centers, nursing homes,
| 12 | | rehabilitation centers, long term or tertiary care facilities, | 13 | | and
other facilities established to administer health care and | 14 | | provide
overnight stays in their ordinary course of business or | 15 | | practice.
| 16 | | "Health care provider" means a person that is licensed,
| 17 | | certified, or otherwise authorized or permitted by the law of | 18 | | this
State to administer health care in the ordinary course of | 19 | | business
or practice of a profession, including, but not | 20 | | limited to,
physicians, nurses, health care facilities, and any | 21 | | employee,
officer, director, agent, or person under contract | 22 | | with such a
person.
| 23 | | "Imminent" (as in "death is imminent") means a | 24 | | determination
made by the attending physician according to | 25 | | accepted medical
standards that death will occur in a | 26 | | relatively short period of
time, even if life-sustaining |
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| 1 | | treatment is initiated or continued.
| 2 | | "Life-sustaining treatment" means any medical treatment,
| 3 | | procedure, or intervention that, in the judgment of the | 4 | | attending
physician, when applied to a patient with a | 5 | | qualifying condition,
would not be effective to remove the | 6 | | qualifying condition
or would serve only to prolong the dying | 7 | | process. Those
procedures can include, but are not limited to, | 8 | | assisted
ventilation, renal dialysis, surgical procedures, | 9 | | blood
transfusions, and the administration of drugs, | 10 | | antibiotics, and
artificial nutrition and hydration.
| 11 | | "Minor" means an individual who is not an adult as defined | 12 | | in
this Act.
| 13 | | "Parent" means a person who is the natural or adoptive | 14 | | mother
or father of the child and whose parental rights have | 15 | | not been
terminated by a court of law.
| 16 | | "Patient" means an adult or minor individual, unless | 17 | | otherwise
specified, under the care or treatment of a licensed | 18 | | physician or
other health care provider.
| 19 | | "Person" means an individual, a corporation, a business | 20 | | trust,
a trust, a partnership, an association, a government, a
| 21 | | governmental subdivision or agency, or any other legal entity.
| 22 | | "Qualifying condition" means the existence of one or more | 23 | | of
the following conditions in a patient certified in writing | 24 | | in the
patient's medical record by the attending physician and | 25 | | by at least
one other qualified health care practitioner | 26 | | physician :
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| 1 | | (1) "Terminal condition" means an illness or injury for
| 2 | | which there is no reasonable prospect of cure or recovery,
| 3 | | death is imminent, and the application of life-sustaining
| 4 | | treatment would only prolong the dying process.
| 5 | | (2) "Permanent unconsciousness" means a condition | 6 | | that,
to a high degree of medical certainty, (i) will last
| 7 | | permanently, without improvement, (ii) in which
thought, | 8 | | sensation, purposeful action, social interaction, and
| 9 | | awareness of self and environment are absent, and (iii) for
| 10 | | which initiating or continuing life-sustaining treatment, | 11 | | in
light of the patient's medical condition, provides only
| 12 | | minimal medical benefit.
| 13 | | (3) "Incurable or irreversible condition" means an
| 14 | | illness or injury (i) for which there is no reasonable
| 15 | | prospect of cure or recovery, (ii) that ultimately will | 16 | | cause
the patient's death even if life-sustaining | 17 | | treatment is
initiated or continued, (iii) that imposes | 18 | | severe pain or
otherwise imposes an inhumane burden on the | 19 | | patient, and (iv)
for which initiating or continuing | 20 | | life-sustaining treatment,
in light of the patient's | 21 | | medical condition, provides only
minimal medical benefit.
| 22 | | The determination that a patient has a qualifying condition | 23 | | creates
no presumption regarding the application or | 24 | | non-application of life-sustaining
treatment. It is only after | 25 | | a determination by the attending physician that the patient has | 26 | | a qualifying condition that the
surrogate decision maker may |
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| 1 | | consider whether or not to forgo
life-sustaining treatment. In | 2 | | making this decision, the surrogate
shall weigh the burdens on | 3 | | the patient of initiating or continuing
life-sustaining | 4 | | treatment against the benefits of that treatment.
| 5 | | "Qualified health care practitioner" means an individual | 6 | | who has personally examined the patient and who is an Illinois | 7 | | licensed physician, advanced practice registered nurse, | 8 | | physician assistant, or licensed resident after completion of | 9 | | one year in a qualified graduate medical education program. | 10 | | "Qualified physician" means a physician licensed to | 11 | | practice
medicine in all of its branches in Illinois who has | 12 | | personally
examined the patient.
| 13 | | "Surrogate decision maker" means an adult individual or
| 14 | | individuals who (i) have decisional capacity, (ii) are | 15 | | available
upon reasonable inquiry, (iii) are willing to make | 16 | | medical treatment
decisions on behalf of
a patient who lacks | 17 | | decisional capacity, and (iv) are identified by
the attending | 18 | | physician in accordance with the provisions of this
Act as the | 19 | | person or persons who are to make those decisions in
accordance | 20 | | with the provisions of this Act.
| 21 | | (Source: P.A. 95-331, eff. 8-21-07.)
| 22 | | (755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
| 23 | | Sec. 20. Private decision making process.
| 24 | | (a) Decisions whether to forgo life-sustaining or any other
| 25 | | form of medical treatment involving an adult patient with
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| 1 | | decisional capacity may be made by that adult patient.
| 2 | | (b) Decisions whether to forgo life-sustaining treatment | 3 | | on
behalf of a patient without decisional capacity are lawful, | 4 | | without
resort to the courts or legal process, if the patient | 5 | | has a
qualifying condition and if the decisions are made in | 6 | | accordance
with one of the following paragraphs in this | 7 | | subsection and
otherwise meet the requirements of this Act:
| 8 | | (1) Decisions whether to forgo life-sustaining
| 9 | | treatment on behalf of a minor or an adult patient who | 10 | | lacks
decisional capacity may be made by a surrogate | 11 | | decision maker
or makers in consultation with the attending | 12 | | physician, in the
order or priority provided in Section 25. | 13 | | A surrogate decision
maker shall make decisions for the | 14 | | adult patient conforming as
closely as possible to what the | 15 | | patient would have done or
intended under the | 16 | | circumstances, taking into account evidence
that includes, | 17 | | but is not limited to, the patient's personal,
| 18 | | philosophical, religious and moral beliefs and ethical | 19 | | values
relative to the purpose of life, sickness, medical | 20 | | procedures,
suffering, and death. Where possible, the | 21 | | surrogate shall
determine how the patient would have | 22 | | weighed the burdens and
benefits of initiating or | 23 | | continuing life-sustaining treatment
against the burdens | 24 | | and benefits of that treatment. In the
event an unrevoked | 25 | | advance directive, such as a living will, a declaration
for | 26 | | mental health treatment, or
a power of attorney for health |
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| 1 | | care, is no longer valid due to
a technical deficiency or | 2 | | is not applicable to the patient's
condition, that document | 3 | | may be used as evidence of a
patient's wishes. The absence | 4 | | of a living will, declaration for mental
health treatment, | 5 | | or power of
attorney for health care shall not give rise to | 6 | | any
presumption as to the patient's preferences regarding | 7 | | the
initiation or continuation of life-sustaining | 8 | | procedures. If
the adult patient's wishes are unknown and | 9 | | remain unknown
after reasonable efforts to discern them or | 10 | | if the patient is
a minor, the decision shall be made on | 11 | | the basis of the
patient's best interests as determined by | 12 | | the surrogate
decision maker. In determining the patient's | 13 | | best interests,
the surrogate shall weigh the burdens on | 14 | | and benefits to the
patient of initiating or continuing | 15 | | life-sustaining treatment
against the burdens and benefits | 16 | | of that treatment and shall
take into account any other | 17 | | information, including the views of
family and friends, | 18 | | that the surrogate decision maker believes
the patient | 19 | | would have considered if able to act for herself
or | 20 | | himself.
| 21 | | (2) Decisions whether to forgo life-sustaining
| 22 | | treatment on behalf of a minor or an adult patient who | 23 | | lacks decisional
capacity, but without any surrogate | 24 | | decision maker or guardian being
available determined | 25 | | after reasonable inquiry by the health
care provider, may | 26 | | be made by a court appointed guardian.
A court appointed |
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| 1 | | guardian shall be treated as a surrogate for the
purposes | 2 | | of this Act.
| 3 | | (b-5) Decisions concerning medical treatment on behalf of a | 4 | | patient
without decisional capacity are lawful, without resort | 5 | | to the courts or legal
process, if the patient does not have a | 6 | | qualifying condition and if decisions
are made in accordance | 7 | | with one of the following paragraphs in this subsection
and | 8 | | otherwise meet the requirements of this Act:
| 9 | | (1) Decisions concerning medical treatment on behalf | 10 | | of a minor or adult
patient who lacks decisional capacity | 11 | | may be made by a surrogate decision maker
or makers in | 12 | | consultation with the attending physician, in the order of
| 13 | | priority provided in Section 25 with the exception that | 14 | | decisions to forgo
life-sustaining treatment may be made | 15 | | only when a patient has a qualifying
condition. A surrogate | 16 | | decision maker shall make decisions for the patient
| 17 | | conforming as closely as possible to what the patient would | 18 | | have done or
intended under the circumstances, taking into | 19 | | account evidence that includes,
but is not limited to, the | 20 | | patient's personal, philosophical, religious, and
moral | 21 | | beliefs and ethical values relative to the purpose of life, | 22 | | sickness,
medical procedures, suffering, and death. In the | 23 | | event an unrevoked advance
directive, such as a living | 24 | | will, a declaration for mental health treatment, or
a power | 25 | | of attorney for health care, is no longer valid due to a | 26 | | technical
deficiency or is not applicable to the patient's |
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| 1 | | condition, that document may
be used as evidence of a | 2 | | patient's wishes. The absence of a living will,
declaration | 3 | | for mental health treatment, or power of attorney for | 4 | | health care
shall not give rise to any presumption as to | 5 | | the patient's preferences
regarding any process. If the | 6 | | adult patient's wishes are unknown and remain
unknown after | 7 | | reasonable efforts to discern them or if the patient is a | 8 | | minor,
the decision shall be made on the basis of the | 9 | | patient's best interests as
determined by the surrogate | 10 | | decision maker. In determining the patient's best
| 11 | | interests, the surrogate shall weigh the burdens on and | 12 | | benefits to the patient
of the treatment against the | 13 | | burdens 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 concerning medical treatment on behalf | 19 | | of a minor or adult
patient who lacks decisional capacity, | 20 | | but without any surrogate decision maker
or guardian being | 21 | | available as determined after reasonable inquiry by the
| 22 | | health care provider, may be made by a court appointed | 23 | | guardian. A court
appointed guardian shall be treated as a | 24 | | surrogate for the purposes of this
Act.
| 25 | | (c) For the purposes of this Act, a patient or surrogate
| 26 | | decision maker is presumed to have decisional capacity in the
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| 1 | | absence of actual notice to the contrary without regard to | 2 | | advanced age.
With respect to a patient, a
diagnosis of mental | 3 | | illness or an intellectual disability, of itself, is
not a bar | 4 | | to a determination of decisional capacity. A
determination that | 5 | | an adult patient lacks decisional capacity shall
be made by the | 6 | | attending physician to a reasonable degree of
medical | 7 | | certainty. The determination shall be in writing in the
| 8 | | patient's medical record and shall set forth the attending | 9 | | physician's opinion regarding the cause, nature, and duration | 10 | | of
the patient's lack of decisional capacity. Before | 11 | | implementation
of a decision by a surrogate decision maker to | 12 | | forgo
life-sustaining treatment, at least one other qualified | 13 | | health care practitioner physician
must concur in the | 14 | | determination that an adult patient lacks decisional
capacity. | 15 | | The concurring determination shall be made in writing in
the | 16 | | patient's medical record after personal examination of the
| 17 | | patient. The attending physician shall inform the patient that | 18 | | it
has been determined that the patient lacks decisional | 19 | | capacity and
that a surrogate decision maker will be making | 20 | | life-sustaining
treatment decisions on behalf of the patient. | 21 | | Moreover, the
patient shall be informed of the identity of the | 22 | | surrogate decision
maker and any decisions made by that | 23 | | surrogate. If the person
identified as the surrogate decision | 24 | | maker is not a court appointed
guardian and the patient objects | 25 | | to the statutory surrogate
decision maker or any decision made | 26 | | by that surrogate decision
maker, then the provisions of this |
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| 1 | | Act shall not apply.
| 2 | | (d) A surrogate decision maker acting on behalf of
the | 3 | | patient shall express decisions to forgo life-sustaining
| 4 | | treatment to the attending physician and one adult witness who | 5 | | is
at least 18 years of age. This decision and the substance of | 6 | | any
known discussion before making the decision shall be | 7 | | documented by the
attending physician in the patient's medical | 8 | | record and signed by
the witness.
| 9 | | (e) The existence of a qualifying condition shall be
| 10 | | documented in writing in the patient's medical record by the
| 11 | | attending physician and shall include its cause and nature, if
| 12 | | known. The written concurrence of another qualified health care | 13 | | practitioner physician is
also required.
| 14 | | (f) Once the provisions of this Act are complied with, the
| 15 | | attending physician shall thereafter promptly implement the
| 16 | | decision to forgo life-sustaining treatment on behalf of the
| 17 | | patient unless he or she believes that the surrogate decision | 18 | | maker
is not acting in accordance with his or her | 19 | | responsibilities under
this Act, or is unable to do so for | 20 | | reasons of conscience or other
personal views or beliefs.
| 21 | | (g) In the event of a patient's death as determined by a
| 22 | | physician, all life-sustaining treatment and other medical | 23 | | care is
to be terminated, unless the patient is an organ donor, | 24 | | in which
case appropriate organ donation treatment may be | 25 | | applied or continued
temporarily.
| 26 | | (Source: P.A. 97-227, eff. 1-1-12.)
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| 1 | | (755 ILCS 40/65)
| 2 | | Sec. 65. Department of Public Health Uniform POLST form.
| 3 | | (a) An individual of sound mind and having reached the age | 4 | | of majority or
having
obtained the status of an emancipated | 5 | | person pursuant to the Emancipation of
Minors Act may execute a | 6 | | document (consistent with the Department of Public
Health | 7 | | Uniform POLST form described in Section 2310-600 of the | 8 | | Department of Public Health Powers and Duties Law of the
Civil | 9 | | Administrative Code of Illinois) directing that
resuscitating | 10 | | efforts shall not be implemented. Such a document may also
be | 11 | | executed by an attending health care practitioner. If more than | 12 | | one practitioner shares that responsibility, any of the | 13 | | attending health care practitioners may act under this Section. | 14 | | Notwithstanding the existence of a do-not-resuscitate (DNR)
| 15 | | order or Department of Public Health Uniform POLST form, | 16 | | appropriate organ donation treatment may be applied or | 17 | | continued
temporarily in the event of the patient's death, in | 18 | | accordance with subsection
(g) of Section 20 of this Act, if | 19 | | the patient is an organ donor.
| 20 | | (a-5) Execution of a Department of Public Health Uniform | 21 | | POLST form is voluntary; no person can be required to execute | 22 | | either form. A person who has executed a Department of Public | 23 | | Health Uniform POLST form should review the form annually and | 24 | | when the person's condition changes. | 25 | | (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) has | 7 | | 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 "attending health care practitioner" means an | 12 | | individual who (1) is an Illinois licensed physician, advanced | 13 | | practice registered nurse, physician assistant, or licensed | 14 | | resident after completion of one year in a program; (2) is | 15 | | selected by or assigned to the patient; and (3) has primary | 16 | | responsibility for treatment and care of the patient. | 17 | | "POLST" means practitioner orders for life-sustaining | 18 | | treatments. | 19 | | "POLST Paradigm portable medical orders form" means a | 20 | | medical orders form, including, but not limited to, a Medical | 21 | | Orders 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 care. | 3 | | The uniform form may, but need not, be in the form adopted by | 4 | | the
Department
of
Public Health pursuant to Section 2310-600 of | 5 | | the Department of Public Health
Powers and
Duties Law (20 ILCS | 6 | | 2310/2310-600).
Except as otherwise provided by law, emergency | 7 | | medical service personnel, a health care provider, or a health | 8 | | care facility shall comply with a Department of Public Health | 9 | | Uniform POLST form, National POLST form, another state's POLST | 10 | | Paradigm portable medical orders form, or an out-of-hospital Do | 11 | | Not Resuscitate (DNR) order sanctioned by a State in the United | 12 | | States that: (i) has been executed by an adult; and (ii) is | 13 | | 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 Paradigm portable | 18 | | medical orders form, or an out-of-hospital Do Not Resuscitate | 19 | | (DNR) order sanctioned by a State in the United States executed | 20 | | by an 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 Paradigm portable medical orders form consented | 8 | | to by the individual, that individual's legally authorized | 9 | | surrogate decision maker shall first: (1) engage in | 10 | | consultation with the attending health care practitioner; (2) | 11 | | consult the patient's advance directive, if available; and (3) | 12 | | make a good faith effort to act consistently, at all times, | 13 | | with the patient's known wishes, or, if the patient's wishes | 14 | | are not known, using substituted judgment as the standard. The | 15 | | attending physician shall document the reasons for this action | 16 | | in the patient's medical record. | 17 | | (e) Nothing in this Section or this amendatory Act of the | 18 | | 94th General Assembly or this amendatory Act of the 98th | 19 | | General Assembly shall be construed to affect the ability of a | 20 | | physician or other practitioner to make a do-not-resuscitate | 21 | | order.
| 22 | | (Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18 .)
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