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Public Act 102-0140


 

Public Act 0140 102ND GENERAL ASSEMBLY

  
  
  

 


 
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.)

Effective Date: 1/1/2022