Illinois General Assembly - Full Text of SB0109
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Full Text of SB0109  102nd General Assembly

SB0109sam001 102ND GENERAL ASSEMBLY

Sen. Sara Feigenholtz

Filed: 4/14/2021

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 109

2    AMENDMENT NO. ______. Amend Senate Bill 109 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Health Care Surrogate Act is amended by
5changing 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
9or (ii) an emancipated minor under the Emancipation of Minors
10Act.
11    "Artificial nutrition and hydration" means supplying food
12and water through a conduit, such as a tube or intravenous
13line, where the recipient is not required to chew or swallow
14voluntarily, including, but not limited to, nasogastric tubes,
15gastrostomies, jejunostomies, and intravenous infusions.
16Artificial nutrition and hydration does not include assisted

 

 

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1feeding, such as spoon or bottle feeding.
2    "Available" means that a person is not "unavailable". A
3person is unavailable if (i) the person's existence is not
4known, (ii) the person has not been able to be contacted by
5telephone or mail, or (iii) the person lacks decisional
6capacity, refuses to accept the office of surrogate, or is
7unwilling to respond in a manner that indicates a choice among
8the treatment matters at issue.
9    "Attending physician" means the physician selected by or
10assigned to the patient who has primary responsibility for
11treatment and care of the patient and who is a licensed
12physician in Illinois. If more than one physician shares that
13responsibility, any of those physicians may act as the
14attending physician under this Act.
15    "Close friend" means any person 18 years of age or older
16who has exhibited special care and concern for the patient and
17who presents an affidavit to the attending physician stating
18that he or she (i) is a close friend of the patient, (ii) is
19willing and able to become involved in the patient's health
20care, and (iii) has maintained such regular contact with the
21patient as to be familiar with the patient's activities,
22health, and religious and moral beliefs. The affidavit must
23also state facts and circumstances that demonstrate that
24familiarity.
25    "Death" means when, according to accepted medical
26standards, there is (i) an irreversible cessation of

 

 

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1circulatory and respiratory functions or (ii) an irreversible
2cessation of all functions of the entire brain, including the
3brain stem.
4    "Decisional capacity" means the ability to understand and
5appreciate the nature and consequences of a decision regarding
6medical treatment or forgoing life-sustaining treatment and
7the ability to reach and communicate an informed decision in
8the matter as determined by the attending physician.
9    "Forgo life-sustaining treatment" means to withhold,
10withdraw, or terminate all or any portion of life-sustaining
11treatment with knowledge that the patient's death is likely to
12result.
13    "Guardian" means a court appointed guardian of the person
14who serves as a representative of a minor or as a
15representative of a person under legal disability.
16    "Health care facility" means a type of health care
17provider commonly known by a wide variety of titles, including
18but not limited to, hospitals, medical centers, nursing homes,
19rehabilitation centers, long term or tertiary care facilities,
20and other facilities established to administer health care and
21provide overnight stays in their ordinary course of business
22or practice.
23    "Health care provider" means a person that is licensed,
24certified, or otherwise authorized or permitted by the law of
25this State to administer health care in the ordinary course of
26business or practice of a profession, including, but not

 

 

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1limited to, physicians, nurses, health care facilities, and
2any employee, officer, director, agent, or person under
3contract with such a person.
4    "Imminent" (as in "death is imminent") means a
5determination made by the attending physician according to
6accepted medical standards that death will occur in a
7relatively short period of time, even if life-sustaining
8treatment is initiated or continued.
9    "Life-sustaining treatment" means any medical treatment,
10procedure, or intervention that, in the judgment of the
11attending physician, when applied to a patient with a
12qualifying condition, would not be effective to remove the
13qualifying condition or would serve only to prolong the dying
14process. Those procedures can include, but are not limited to,
15assisted ventilation, renal dialysis, surgical procedures,
16blood transfusions, and the administration of drugs,
17antibiotics, and artificial nutrition and hydration.
18    "Minor" means an individual who is not an adult as defined
19in this Act.
20    "Parent" means a person who is the natural or adoptive
21mother or father of the child and whose parental rights have
22not been terminated by a court of law.
23    "Patient" means an adult or minor individual, unless
24otherwise specified, under the care or treatment of a licensed
25physician or other health care provider.
26    "Person" means an individual, a corporation, a business

 

 

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1trust, a trust, a partnership, an association, a government, a
2governmental subdivision or agency, or any other legal entity.
3    "Qualifying condition" means the existence of one or more
4of the following conditions in a patient certified in writing
5in the patient's medical record by the attending physician and
6by at least one other qualified health care practitioner
7physician:
8        (1) "Terminal condition" means an illness or injury
9    for which there is no reasonable prospect of cure or
10    recovery, death is imminent, and the application of
11    life-sustaining treatment would only prolong the dying
12    process.
13        (2) "Permanent unconsciousness" means a condition
14    that, to a high degree of medical certainty, (i) will last
15    permanently, without improvement, (ii) in which thought,
16    sensation, purposeful action, social interaction, and
17    awareness of self and environment are absent, and (iii)
18    for which initiating or continuing life-sustaining
19    treatment, in light of the patient's medical condition,
20    provides only minimal medical benefit.
21        (3) "Incurable or irreversible condition" means an
22    illness or injury (i) for which there is no reasonable
23    prospect of cure or recovery, (ii) that ultimately will
24    cause the patient's death even if life-sustaining
25    treatment is initiated or continued, (iii) that imposes
26    severe pain or otherwise imposes an inhumane burden on the

 

 

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1    patient, and (iv) for which initiating or continuing
2    life-sustaining treatment, in light of the patient's
3    medical condition, provides only minimal medical benefit.
4    The determination that a patient has a qualifying
5condition creates no presumption regarding the application or
6non-application of life-sustaining treatment. It is only after
7a determination by the attending physician that the patient
8has a qualifying condition that the surrogate decision maker
9may consider whether or not to forgo life-sustaining
10treatment. In making this decision, the surrogate shall weigh
11the burdens on the patient of initiating or continuing
12life-sustaining treatment against the benefits of that
13treatment.
14    "Qualified health care practitioner" means an individual
15who has personally examined the patient and who is an Illinois
16licensed physician, advanced practice registered nurse,
17physician assistant, or resident with at least one year of
18graduate or specialty training in this State who holds an
19Illinois temporary license to practice medicine and is
20enrolled in a residency program accredited by the Liaison
21Committee on Graduate Medical Education or the Bureau of
22Professional Education of the American Osteopathic
23Association.
24    "Physician" means a physician licensed to practice
25medicine in all its branches in this State.
26    "Qualified physician" means a physician licensed to

 

 

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1practice medicine in all of its branches in Illinois who has
2personally examined the patient.
3    "Surrogate decision maker" means an adult individual or
4individuals who (i) have decisional capacity, (ii) are
5available upon reasonable inquiry, (iii) are willing to make
6medical treatment decisions on behalf of a patient who lacks
7decisional capacity, and (iv) are identified by the attending
8physician in accordance with the provisions of this Act as the
9person or persons who are to make those decisions in
10accordance with the provisions of this Act.
11(Source: P.A. 95-331, eff. 8-21-07.)
 
12    (755 ILCS 40/20)  (from Ch. 110 1/2, par. 851-20)
13    Sec. 20. Private decision making process.
14    (a) Decisions whether to forgo life-sustaining or any
15other form of medical treatment involving an adult patient
16with decisional capacity may be made by that adult patient.
17    (b) Decisions whether to forgo life-sustaining treatment
18on behalf of a patient without decisional capacity are lawful,
19without resort to the courts or legal process, if the patient
20has a qualifying condition and if the decisions are made in
21accordance with one of the following paragraphs in this
22subsection and otherwise meet the requirements of this Act:
23        (1) Decisions whether to forgo life-sustaining
24    treatment on behalf of a minor or an adult patient who
25    lacks decisional capacity may be made by a surrogate

 

 

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1    decision maker or makers in consultation with the
2    attending physician, in the order or priority provided in
3    Section 25. A surrogate decision maker shall make
4    decisions for the adult patient conforming as closely as
5    possible to what the patient would have done or intended
6    under the circumstances, taking into account evidence that
7    includes, but is not limited to, the patient's personal,
8    philosophical, religious and moral beliefs and ethical
9    values relative to the purpose of life, sickness, medical
10    procedures, suffering, and death. Where possible, the
11    surrogate shall determine how the patient would have
12    weighed the burdens and benefits of initiating or
13    continuing life-sustaining treatment against the burdens
14    and benefits of that treatment. In the event an unrevoked
15    advance directive, such as a living will, a declaration
16    for mental health treatment, or a power of attorney for
17    health care, is no longer valid due to a technical
18    deficiency or is not applicable to the patient's
19    condition, that document may be used as evidence of a
20    patient's wishes. The absence of a living will,
21    declaration for mental health treatment, or power of
22    attorney for health care shall not give rise to any
23    presumption as to the patient's preferences regarding the
24    initiation or continuation of life-sustaining procedures.
25    If the adult patient's wishes are unknown and remain
26    unknown after reasonable efforts to discern them or if the

 

 

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1    patient is a minor, the decision shall be made on the basis
2    of the patient's best interests as determined by the
3    surrogate decision maker. In determining the patient's
4    best interests, the surrogate shall weigh the burdens on
5    and benefits to the patient of initiating or continuing
6    life-sustaining treatment against the burdens and benefits
7    of that treatment and shall take into account any other
8    information, including the views of family and friends,
9    that the surrogate decision maker believes the patient
10    would have considered if able to act for herself or
11    himself.
12        (2) Decisions whether to forgo life-sustaining
13    treatment on behalf of a minor or an adult patient who
14    lacks decisional capacity, but without any surrogate
15    decision maker or guardian being available determined
16    after reasonable inquiry by the health care provider, may
17    be made by a court appointed guardian. A court appointed
18    guardian shall be treated as a surrogate for the purposes
19    of this Act.
20    (b-5) Decisions concerning medical treatment on behalf of
21a patient without decisional capacity are lawful, without
22resort to the courts or legal process, if the patient does not
23have a qualifying condition and if decisions are made in
24accordance with one of the following paragraphs in this
25subsection and otherwise meet the requirements of this Act:
26        (1) Decisions concerning medical treatment on behalf

 

 

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1    of a minor or adult patient who lacks decisional capacity
2    may be made by a surrogate decision maker or makers in
3    consultation with the attending physician, in the order of
4    priority provided in Section 25 with the exception that
5    decisions to forgo life-sustaining treatment may be made
6    only when a patient has a qualifying condition. A
7    surrogate decision maker shall make decisions for the
8    patient conforming as closely as possible to what the
9    patient would have done or intended under the
10    circumstances, taking into account evidence that includes,
11    but is not limited to, the patient's personal,
12    philosophical, religious, and moral beliefs and ethical
13    values relative to the purpose of life, sickness, medical
14    procedures, suffering, and death. In the event an
15    unrevoked advance directive, such as a living will, a
16    declaration for mental health treatment, or a power of
17    attorney for health care, is no longer valid due to a
18    technical deficiency or is not applicable to the patient's
19    condition, that document may be used as evidence of a
20    patient's wishes. The absence of a living will,
21    declaration for mental health treatment, or power of
22    attorney for health care shall not give rise to any
23    presumption as to the patient's preferences regarding any
24    process. If the adult patient's wishes are unknown and
25    remain unknown after reasonable efforts to discern them or
26    if the patient is a minor, the decision shall be made on

 

 

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1    the basis of the patient's best interests as determined by
2    the surrogate decision maker. In determining the patient's
3    best interests, the surrogate shall weigh the burdens on
4    and benefits to the patient of the treatment against the
5    burdens and benefits of that treatment and shall take into
6    account any other information, including the views of
7    family and friends, that the surrogate decision maker
8    believes the patient would have considered if able to act
9    for herself or himself.
10        (2) Decisions concerning medical treatment on behalf
11    of a minor or adult patient who lacks decisional capacity,
12    but without any surrogate decision maker or guardian being
13    available as determined after reasonable inquiry by the
14    health care provider, may be made by a court appointed
15    guardian. A court appointed guardian shall be treated as a
16    surrogate for the purposes of this Act.
17    (c) For the purposes of this Act, a patient or surrogate
18decision maker is presumed to have decisional capacity in the
19absence of actual notice to the contrary without regard to
20advanced age. With respect to a patient, a diagnosis of mental
21illness or an intellectual disability, of itself, is not a bar
22to a determination of decisional capacity. A determination
23that an adult patient lacks decisional capacity shall be made
24by the attending physician to a reasonable degree of medical
25certainty. The determination shall be in writing in the
26patient's medical record and shall set forth the attending

 

 

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1physician's opinion regarding the cause, nature, and duration
2of the patient's lack of decisional capacity. Before
3implementation of a decision by a surrogate decision maker to
4forgo life-sustaining treatment, at least one other qualified
5health care practitioner physician must concur in the
6determination that an adult patient lacks decisional capacity.
7The concurring determination shall be made in writing in the
8patient's medical record after personal examination of the
9patient. The attending physician shall inform the patient that
10it has been determined that the patient lacks decisional
11capacity and that a surrogate decision maker will be making
12life-sustaining treatment decisions on behalf of the patient.
13Moreover, the patient shall be informed of the identity of the
14surrogate decision maker and any decisions made by that
15surrogate. If the person identified as the surrogate decision
16maker is not a court appointed guardian and the patient
17objects to the statutory surrogate decision maker or any
18decision made by that surrogate decision maker, then the
19provisions of this Act shall not apply.
20    (d) A surrogate decision maker acting on behalf of the
21patient shall express decisions to forgo life-sustaining
22treatment to the attending physician and one adult witness who
23is at least 18 years of age. This decision and the substance of
24any known discussion before making the decision shall be
25documented by the attending physician in the patient's medical
26record and signed by the witness.

 

 

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1    (e) The existence of a qualifying condition shall be
2documented in writing in the patient's medical record by the
3attending physician and shall include its cause and nature, if
4known. The written concurrence of another qualified health
5care practitioner physician is also required.
6    (f) Once the provisions of this Act are complied with, the
7attending physician shall thereafter promptly implement the
8decision to forgo life-sustaining treatment on behalf of the
9patient unless he or she believes that the surrogate decision
10maker is not acting in accordance with his or her
11responsibilities under this Act, or is unable to do so for
12reasons of conscience or other personal views or beliefs.
13    (g) In the event of a patient's death as determined by a
14physician, all life-sustaining treatment and other medical
15care is to be terminated, unless the patient is an organ donor,
16in which case appropriate organ donation treatment may be
17applied or continued temporarily.
18    (h) A surrogate decision maker may execute a POLST
19portable medical orders form to forgo life sustaining
20treatment consistent with this Section.
21(Source: P.A. 97-227, eff. 1-1-12.)
 
22    (755 ILCS 40/65)
23    Sec. 65. Department of Public Health Uniform POLST form.
24    (a) An individual of sound mind and having reached the age
25of majority or having obtained the status of an emancipated

 

 

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1person pursuant to the Emancipation of Minors Act may execute
2a document (consistent with the Department of Public Health
3Uniform POLST form described in Section 2310-600 of the
4Department of Public Health Powers and Duties Law of the Civil
5Administrative Code of Illinois) directing that resuscitating
6efforts shall not be implemented. This individual may also
7revoke the document at will. Such a document may also be
8executed by a qualified an attending health care practitioner.
9If more than one practitioner shares that responsibility for
10the treatment and care of an individual, any of the qualified
11attending health care practitioners may act under this
12Section. Notwithstanding the existence of a do-not-resuscitate
13(DNR) order or Department of Public Health Uniform POLST form,
14appropriate organ donation treatment may be applied or
15continued temporarily in the event of the patient's death, in
16accordance with subsection (g) of Section 20 of this Act, if
17the patient is an organ donor.
18    (a-5) Execution of a Department of Public Health Uniform
19POLST form is voluntary; no person can be required to execute
20the either form. Execution of a POLST form shall not be a
21requirement for admission to any facility or a precondition to
22the provision of services by any provider of health care
23services. A person who has executed a Department of Public
24Health Uniform POLST form should review the form annually and
25when the person's condition changes.
26    (b) Consent to a Department of Public Health Uniform POLST

 

 

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1form may be obtained from the individual, or from another
2person at the individual's direction, or from the individual's
3legal guardian, agent under a power of attorney for health
4care, or surrogate decision maker, and witnessed by one
5individual 18 years of age or older, who attests that the
6individual, other person, guardian, agent, or surrogate (1)
7has had an opportunity to read the form; and (2) has signed the
8form or acknowledged his or her signature or mark on the form
9in the witness's presence.
10    (b-5) As used in this Section: ,
11    "attending health care practitioner" means an individual
12who (1) is an Illinois licensed physician, advanced practice
13registered nurse, physician assistant, or licensed resident
14after completion of one year in a program; (2) is selected by
15or assigned to the patient; and (3) has primary responsibility
16for treatment and care of the patient.
17    "POLST" means practitioner orders for life-sustaining
18treatments.
19    "POLST portable medical orders form" means a medical
20orders form, including, but not limited to, a Medical Orders
21for Scope of Treatment (MOST), Medical Orders for Life
22Sustaining Treatment (MOLST), Physician Orders for Scope of
23Treatment (POST), or Physician Orders for Life Sustaining
24Treatment (POLST) form, that is formally authorized by a state
25or territory within the United States.
26    (c) Nothing in this Section shall be construed to affect

 

 

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1the ability of an individual to include instructions in an
2advance directive, such as a power of attorney for health
3care. The uniform form may, but need not, be in the form
4adopted by the Department of Public Health pursuant to Section
52310-600 of the Department of Public Health Powers and Duties
6Law (20 ILCS 2310/2310-600). Except as otherwise provided by
7law, emergency medical service personnel, a health care
8provider, or a health care facility shall comply with a
9Department of Public Health Uniform POLST form, National POLST
10form, another state's POLST portable medical orders form, or
11an out-of-hospital Do Not Resuscitate (DNR) order sanctioned
12by a state in the United States that: (i) has been executed by
13an adult; and (ii) is apparent and immediately available.
14    (d) A health care professional or health care provider may
15presume, in the absence of knowledge to the contrary, that a
16completed Department of Public Health Uniform POLST form,
17National POLST form, another state's POLST portable medical
18orders form, or an out-of-hospital Do Not Resuscitate (DNR)
19order sanctioned by a state in the United States executed by an
20adult, or a copy of that form or a previous version of the
21uniform form, is valid. A health care professional or health
22care provider, or an employee of a health care professional or
23health care provider, who in good faith complies with a
24cardiopulmonary resuscitation (CPR) or life-sustaining
25treatment order, Department of Public Health Uniform POLST
26form, or a previous version of the uniform form made in

 

 

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1accordance with this Act is not, as a result of that
2compliance, subject to any criminal or civil liability, except
3for willful and wanton misconduct, and may not be found to have
4committed an act of unprofessional conduct.
5    (d-5) Before voiding or revoking a Department of Public
6Health Uniform POLST form, National POLST form, or another
7state's POLST portable medical orders form executed by the
8individual, that individual's legally authorized surrogate
9decision maker shall first: (1) engage in consultation with a
10qualified health care practitioner; (2) consult the patient's
11advance directive, if available; and (3) make a good faith
12effort to act consistently, at all times, with the patient's
13known wishes, using substituted judgment as the standard. If
14the patient's wishes are unknown and remain unknown after
15reasonable efforts to discern them, the decision shall be made
16on the basis of the patient's best interests as determined by
17the surrogate decision maker. A qualified health care
18practitioner shall document the reasons for this action in the
19patient's medical record. This process does not apply to an
20individual wanting to revoke his or her own POLST form.
21    (e) Nothing in this Section or this amendatory Act of the
2294th General Assembly or this amendatory Act of the 98th
23General Assembly shall be construed to affect the ability of a
24physician or other practitioner to make a do-not-resuscitate
25order.
26(Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18.)".