[ Search ] [ Legislation ] [ Bill Summary ]
[ Home ] [ Back ] [ Bottom ]
| [ Introduced ] | [ Engrossed ] | [ Enrolled ] |
| [ House Amendment 001 ] |
90_HB0725sam001
LRB9001282DJmbam01
1 AMENDMENT TO HOUSE BILL 725
2 AMENDMENT NO. . Amend House Bill 725 by replacing
3 the title with the following:
4 "AN ACT concerning health care, amending named Acts.";
5 and
6 by replacing everything after the enacting clause with the
7 following:
8 "Section 5. The Right of Conscience Act is amended by
9 changing Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
10 and 14 and adding Sections 11.2, 11.3, and 11.4 as follows:
11 (745 ILCS 70/1) (from Ch. 111 1/2, par. 5301)
12 Sec. 1. Short title. This Act shall be known and may be
13 cited as the Health Care "Right of Conscience Act".
14 (Source: P.A. 80-616.)
15 (745 ILCS 70/2) (from Ch. 111 1/2, par. 5302)
16 Sec. 2. Findings and policy. The General Assembly finds
17 and declares that people and organizations hold different
18 beliefs about whether certain health care services are
19 morally acceptable. It is the public policy of the State of
-2- LRB9001282DJmbam01
1 Illinois to respect and protect the right of conscience of
2 all persons who refuse to obtain, receive or accept, or who
3 are engaged in, the delivery of, arrangement for, or payment
4 of health care medical services and medical care whether
5 acting individually, corporately, or in association with
6 other persons; and to prohibit all forms of discrimination,
7 disqualification, coercion, disability or imposition of
8 liability upon such persons or entities by reason of their
9 refusing to act contrary to their conscience or conscientious
10 convictions in refusing to obtain, receive, accept, or
11 deliver, pay for, or arrange for the payment of health care
12 medical services and medical care.
13 (Source: P.A. 80-616.)
14 (745 ILCS 70/3) (from Ch. 111 1/2, par. 5303)
15 Sec. 3. Definitions. As used in this Act, unless the
16 context clearly otherwise requires:
17 (a) "Health Medical care" means any phase of patient
18 care, including but not limited to, testing; diagnosis;
19 prognosis; ancillary research; instructions; family planning,
20 counselling, referrals, or any other advice in connection
21 with the use or procurement of contraceptives and
22 sterilization or abortion procedures; medication; or surgery
23 or other care or treatment rendered by a physician or
24 physicians, nurses, paraprofessionals or health care medical
25 facility, intended for the physical, emotional, and mental
26 well-being of persons;
27 (b) "Physician" means any person who is entitled to
28 provide medical services or medical care or is licensed by
29 the State of Illinois under the Medical Practice Act of 1987
30 to practice medicine in all its branches, whether as intern,
31 resident, medical trainee, or fully licensed practitioner of
32 medicine;
33 (c) "Health care Medical personnel" means any nurse,
-3- LRB9001282DJmbam01
1 nurses' aide aid, medical school student, professional,
2 paraprofessional or any other person who furnishes, or
3 assists in the furnishing of, health care medical care
4 services;
5 (d) "Health care Medical facility" means any public or
6 private hospital, clinic, center, medical school, medical
7 training institution, laboratory or diagnostic health care
8 facility, physician's office, infirmary, dispensary,
9 ambulatory surgical treatment center or other institution or
10 location wherein health care services are medical care is
11 provided to any person, including physician organizations and
12 associations, networks, joint ventures, and all other
13 combinations of those organizations; and
14 (e) "Conscience" means a sincerely held set of moral
15 convictions arising from belief in and relation to God, or
16 which, though not so derived, arises obtains from a place in
17 the life of its possessor parallel to that filled by God
18 among adherents to religious faiths; and.
19 (f) "Health care payer" means a health maintenance
20 organization, insurance company, management services
21 organization, or any other entity that pays for or arranges
22 for the payment of any health care or medical care service,
23 procedure, or product.
24 The above definitions include not only the traditional
25 combinations and forms of these persons and organizations but
26 also all new and emerging forms and combinations of these
27 persons and organizations.
28 (Source: P.A. 80-616.)
29 (745 ILCS 70/4) (from Ch. 111 1/2, par. 5304)
30 Sec. 4. Liability. No physician or health care medical
31 personnel shall be civilly or criminally liable to any
32 person, estate, public or private entity or public official
33 by reason of his or her refusal to perform, assist, counsel,
-4- LRB9001282DJmbam01
1 suggest, recommend, refer or participate in any way in any
2 particular form of health medical care service which is
3 contrary to the conscience of such physician or health care
4 medical personnel.
5 (Source: P.A. 80-616.)
6 (745 ILCS 70/5) (from Ch. 111 1/2, par. 5305)
7 Sec. 5. Discrimination. It shall be unlawful for any
8 person, public or private institution, or public official to
9 discriminate against any person in any manner, including but
10 not limited to, licensing, hiring, promotion, transfer, staff
11 appointment, hospital, managed care entity, or any other
12 privileges, because of such person's conscientious refusal to
13 receive, obtain, accept, perform, assist, counsel, suggest,
14 recommend, refer or participate in any way in any particular
15 form of health care services medical care contrary to his or
16 her conscience.
17 (Source: P.A. 80-616.)
18 (745 ILCS 70/6) (from Ch. 111 1/2, par. 5306)
19 Sec. 6. Duty of physicians and other health care
20 personnel. Nothing in this Act shall relieve a physician
21 from any duty, which may exist under any laws concerning
22 current standards, of normal medical practices and
23 procedures, to inform his or her patient of the patient's
24 condition, prognosis and risks, provided, however, that such
25 physician shall be under no duty to perform, assist, counsel,
26 suggest, recommend, refer or participate in any way in any
27 form of medical practice or health medical care service that
28 is contrary to his or her conscience.
29 Nothing in this Act shall be construed so as to relieve a
30 physician or other health care medical personnel from
31 obligations under the law of providing emergency medical
32 care.
-5- LRB9001282DJmbam01
1 (Source: P.A. 80-616.)
2 (745 ILCS 70/7) (from Ch. 111 1/2, par. 5307)
3 Sec. 7. Discrimination by employers or institutions. It
4 shall be unlawful for any public or private employer, entity,
5 agency, institution, official or person, including but not
6 limited to, a medical, nursing or other medical training
7 institution, to deny admission because of, to place any
8 reference in its application form concerning, to orally
9 question about, to impose any burdens in terms or conditions
10 of employment on, or to otherwise discriminate against, any
11 applicant, in terms of employment, admission to or
12 participation in any programs for which the applicant is
13 eligible, or to discriminate in relation thereto, in any
14 other manner, on account of the applicant's refusal to
15 receive, obtain, accept, perform, counsel, suggest,
16 recommend, refer, assist or participate in any way in any
17 forms of health medical care services contrary to his or her
18 conscience.
19 (Source: P.A. 80-616.)
20 (745 ILCS 70/8) (from Ch. 111 1/2, par. 5308)
21 Sec. 8. Denial of aid or benefits. It shall be unlawful
22 for any public official, guardian, agency, institution or
23 entity to deny any form of aid, assistance or benefits, or to
24 condition the reception in any way of any form of aid,
25 assistance or benefits, or in any other manner to coerce,
26 disqualify or discriminate against any person, otherwise
27 entitled to such aid, assistance or benefits, because that
28 person refuses to obtain, receive, accept, perform, assist,
29 counsel, suggest, recommend, refer or participate in any way
30 in any form of health medical care services contrary to his
31 or her conscience.
32 (Source: P.A. 80-616.)
-6- LRB9001282DJmbam01
1 (745 ILCS 70/9) (from Ch. 111 1/2, par. 5309)
2 Sec. 9. Liability. No person, association, or
3 corporation, which owns, operates, supervises, or manages a
4 health care medical facility shall be civilly or criminally
5 liable to any person, estate, or public or private entity by
6 reason of refusal of the health care such medical facility to
7 permit or provide any particular form of health medical care
8 service which violates the facility's conscience as
9 documented in its ethical guidelines, mission statement,
10 constitution, by-laws, articles of incorporation, or
11 regulations, or other governing documents.
12 Nothing in this act shall be construed so as to relieve a
13 physician or other health care medical personnel from
14 obligations under the law of providing emergency medical
15 care.
16 (Source: P.A. 80-616.)
17 (745 ILCS 70/10) (from Ch. 111 1/2, par. 5310)
18 Sec. 10. Discrimination against facility. It shall be
19 unlawful for any person, public or private institution or
20 public official to discriminate against any person,
21 association or corporation attempting to establish a new
22 health care medical facility or operating an existing health
23 care medical facility, in any manner, including but not
24 limited to, denial, deprivation or disqualification in
25 licensing, granting of authorizations, aids, assistance,
26 benefits, medical staff or any other privileges, and granting
27 authorization to expand, improve, or create any health care
28 medical facility, by reason of the refusal of such person,
29 association or corporation planning, proposing or operating a
30 health care medical facility, to permit or perform any
31 particular form of health medical care service which violates
32 the health care facility's conscience as documented in its
33 existing or proposed ethical guidelines, mission statement,
-7- LRB9001282DJmbam01
1 constitution, by-laws, articles of incorporation, or
2 regulations, or other governing documents.
3 (Source: P.A. 80-616.)
4 (745 ILCS 70/11) (from Ch. 111 1/2, par. 5311)
5 Sec. 11. Denial of aid or benefit to a facility. It
6 shall be unlawful for any public official, agency,
7 institution or entity to deny any form of aid, assistance,
8 grants or benefits; or in any other manner to coerce,
9 disqualify or discriminate against any person, association or
10 corporation attempting to establish a new health care medical
11 facility or operating an existing health care medical
12 facility which otherwise would be entitled to the aid,
13 assistance, grant or benefit because the existing or proposed
14 health care medical facility refuses to perform, assist,
15 counsel, suggest, recommend, refer or participate in any way
16 in any form of health medical care services contrary to the
17 health care facility's conscience as documented in its
18 existing or proposed ethical guidelines, mission statement,
19 constitution, by-laws, articles of incorporation, or
20 regulations, or other governing documents.
21 (Source: P.A. 80-616.)
22 (745 ILCS 70/11.2 new)
23 Sec. 11.2. Liability of health care payer. No health
24 care payer and no person, association, or corporation that
25 owns, operates, supervises, or manages a health care payer
26 shall be civilly or criminally liable to any person, estate,
27 or public or private entity by reason of refusal of the
28 health care payer to pay for or arrange for the payment of
29 any particular form of health care services that violate the
30 health care payer's conscience as documented in its ethical
31 guidelines, mission statement, constitution, by-laws,
32 articles of incorporation, regulations, or other governing
-8- LRB9001282DJmbam01
1 documents.
2 (745 ILCS 70/11.3 new)
3 Sec. 11.3. Discrimination against health care payer in
4 licensing. It shall be unlawful for any person, public or
5 private institution, or public official to discriminate
6 against any person, association, or corporation (i)
7 attempting to establish a new health care payer or (ii)
8 operating an existing health care payer, in any manner,
9 including but not limited to, denial, deprivation, or
10 disqualification in licensing; granting of authorizations,
11 aids, assistance, benefits, or any other privileges; and
12 granting authorization to expand, improve, or create any
13 health care payer, because the person, association, or
14 corporation planning, proposing, or operating a health care
15 payer refuses to pay for or arrange for the payment of any
16 particular form of health care services that violates the
17 health care payer's conscience as documented in the existing
18 or proposed ethical guidelines, mission statement,
19 constitution, by-laws, articles of incorporation, regulations
20 or other governing documents.
21 (745 ILCS 70/11.4 new)
22 Sec. 11.4. Denial of aid or benefits to health care
23 payer for refusal to participate in certain health care. It
24 shall be unlawful for any public official, agency,
25 institution, or entity to deny any form of aid, assistance,
26 grants, or benefits; or in any other manner to coerce,
27 disqualify, or discriminate against any person, association,
28 or corporation attempting to establish a new health care
29 payer or operating an existing health care payer that
30 otherwise would be entitled to the aid, assistance, grant, or
31 benefit because the existing or proposed health care payer
32 refuses to pay for, arrange for the payment of, or
-9- LRB9001282DJmbam01
1 participate in any way in any form of health care services
2 contrary to the health care payer's conscience as documented
3 in its existing or proposed ethical guidelines, mission
4 statement, constitution, by-laws, articles of incorporation,
5 regulations, or other governing documents.
6 (745 ILCS 70/12) (from Ch. 111 1/2, par. 5312)
7 Sec. 12. Actions; damages. Any person, association,
8 corporation, entity or health care medical facility injured
9 by any public or private person, association, agency, entity
10 or corporation by reason of any action prohibited by this
11 Act, as now or hereafter amended, may commence a suit
12 therefor, and shall recover threefold the actual damages,
13 including pain and suffering, sustained by such person,
14 association, corporation, entity or health care medical
15 facility, the costs of the suit and reasonable attorney's
16 fees; but in no case shall recovery be less than $2,500 for
17 each violation in addition to costs of the suit and
18 reasonable attorney's fees. These damage remedies shall be
19 cumulative, and not exclusive of other remedies afforded
20 under any other state or federal law.
21 (Source: P.A. 80-616.)
22 (745 ILCS 70/13) (from Ch. 111 1/2, par. 5313)
23 Sec. 13. Liability for refusal to provide certain health
24 care. Nothing in this Act shall be construed as excusing any
25 person, public or private institution, or public official
26 from liability for refusal to permit or provide a particular
27 form of health medical care service if:
28 (a) the person, public or private institution or public
29 official has entered into a contract specifically to provide
30 that particular form of health medical care service; or
31 (b) the person, public or private institution or public
32 official has accepted federal or state funds for the sole
-10- LRB9001282DJmbam01
1 purpose of, and specifically conditioned upon, permitting or
2 providing that particular form of health medical care
3 service.
4 (Source: P.A. 80-616.)
5 (745 ILCS 70/14) (from Ch. 111 1/2, par. 5314)
6 Sec. 14. Supersedes other Acts. This Act shall
7 supersede all other Acts or parts of Acts to the extent that
8 any such prior Acts or parts of Acts are inconsistent with
9 the terms or operation of this Act.
10 (Source: P.A. 80-616.)
11 Section 10. The Health Care Surrogate Act is amended by
12 changing Sections 5, 10, 15, 20, and 25 as follows:
13 (755 ILCS 40/5) (from Ch. 110 1/2, par. 851-5)
14 Sec. 5. Legislative findings and purposes.
15 (a) Findings.
16 The legislature recognizes that all persons have a
17 fundamental right to make decisions relating to their own
18 medical treatment, including the right to forgo
19 life-sustaining treatment.
20 Lack of decisional capacity, alone, should not prevent
21 decisions to forgo life-sustaining treatment from being made
22 on behalf of persons who lack decisional capacity and have no
23 known applicable living will or power of attorney for health
24 care.
25 Uncertainty and lack of clarity in the law concerning the
26 making of private decisions concerning medical treatment and
27 to forgo life-sustaining treatment, without judicial
28 involvement, causes unnecessary emotional distress to the
29 individuals involved and unduly impedes upon the individual
30 right to forgo life-sustaining treatment.
31 The enactment of statutory guidelines for private
-11- LRB9001282DJmbam01
1 decision making will bring improved clarity and certainty to
2 the process for implementing decisions concerning medical
3 treatment and to forgo life-sustaining treatment and will
4 substantially reduce the associated emotional distress for
5 involved parties.
6 (b) Purposes.
7 This Act is intended to define the circumstances under
8 which private decisions by patients with decisional capacity
9 and by surrogate decision makers on behalf of patients
10 lacking decisional capacity to make medical treatment
11 decisions or to terminate life-sustaining treatment may be
12 made without judicial involvement of any kind.
13 This Act is intended to establish a process for that
14 private decision making.
15 This Act is intended to clarify the rights and
16 obligations of those involved in these private decisions by
17 or on behalf of patients.
18 This Act is not intended to condone, authorize, or
19 approve mercy killing or assisted suicide.
20 (Source: P.A. 87-749)
21 (755 ILCS 40/10) (from Ch. 110 1/2, par. 851-10)
22 Sec. 10. Definitions.
23 "Adult" means a person who is (i) 18 years of age or
24 older or (ii) an emancipated minor under the Emancipation of
25 Mature Minors Act.
26 "Artificial nutrition and hydration" means supplying food
27 and water through a conduit, such as a tube or intravenous
28 line, where the recipient is not required to chew or swallow
29 voluntarily, including, but not limited to, nasogastric
30 tubes, gastrostomies, jejunostomies, and intravenous
31 infusions. Artificial nutrition and hydration does not
32 include assisted feeding, such as spoon or bottle feeding.
33 "Available" means that a person is not "unavailable". A
-12- LRB9001282DJmbam01
1 person is unavailable if (i) the person's existence is not
2 known, (ii) the person has not been able to be contacted by
3 telephone or mail, or (iii) the person lacks decisional
4 capacity, refuses to accept the office of surrogate, or is
5 unwilling to respond in a manner that indicates a choice
6 among the life-sustaining treatment matters at issue.
7 "Attending physician" means the physician selected by or
8 assigned to the patient who has primary responsibility for
9 treatment and care of the patient and who is a licensed
10 physician in Illinois. If more than one physician shares
11 that responsibility, any of those physicians may act as the
12 attending physician under this Act.
13 "Close friend" means any person 18 years of age or older
14 who has exhibited special care and concern for the patient
15 and who presents an affidavit to the attending physician
16 stating that he or she (i) is a close friend of the patient,
17 (ii) is willing and able to become involved in the patient's
18 health care, and (iii) has maintained such regular contact
19 with the patient as to be familiar with the patient's
20 activities, health, and religious and moral beliefs. The
21 affidavit must also state facts and circumstances that
22 demonstrate that familiarity.
23 "Death" means when, according to accepted medical
24 standards, there is (i) an irreversible cessation of
25 circulatory and respiratory functions or (ii) an irreversible
26 cessation of all functions of the entire brain, including the
27 brain stem.
28 "Decisional capacity" means the ability to understand and
29 appreciate the nature and consequences of a decision
30 regarding medical treatment or forgoing life-sustaining
31 treatment and the ability to reach and communicate an
32 informed decision in the matter as determined by the
33 attending physician.
34 "Forgo life-sustaining treatment" means to withhold,
-13- LRB9001282DJmbam01
1 withdraw, or terminate all or any portion of life-sustaining
2 treatment with knowledge that the patient's death is likely
3 to result.
4 "Guardian" means a court appointed guardian of the person
5 who serves as a representative of a minor or as a
6 representative of a person under legal disability.
7 "Health care facility" means a type of health care
8 provider commonly known by a wide variety of titles,
9 including but not limited to, hospitals, medical centers,
10 nursing homes, rehabilitation centers, long term or tertiary
11 care facilities, and other facilities established to
12 administer health care and provide overnight stays in their
13 ordinary course of business or practice.
14 "Health care provider" means a person that is licensed,
15 certified, or otherwise authorized or permitted by the law of
16 this State to administer health care in the ordinary course
17 of business or practice of a profession, including, but not
18 limited to, physicians, nurses, health care facilities, and
19 any employee, officer, director, agent, or person under
20 contract with such a person.
21 "Imminent" (as in "death is imminent") means a
22 determination made by the attending physician according to
23 accepted medical standards that death will occur in a
24 relatively short period of time, even if life-sustaining
25 treatment is initiated or continued.
26 "Life-sustaining treatment" means any medical treatment,
27 procedure, or intervention that, in the judgment of the
28 attending physician, when applied to a patient with a
29 qualifying condition, would not be effective to remove the
30 qualifying condition or would serve only to prolong the dying
31 process. Those procedures can include, but are not limited
32 to, assisted ventilation, renal dialysis, surgical
33 procedures, blood transfusions, and the administration of
34 drugs, antibiotics, and artificial nutrition and hydration.
-14- LRB9001282DJmbam01
1 "Minor" means an individual who is not an adult as
2 defined in this Act.
3 "Parent" means a person who is the natural or adoptive
4 mother or father of the child and whose parental rights have
5 not been terminated by a court of law.
6 "Patient" means an adult or minor individual, unless
7 otherwise specified, under the care or treatment of a
8 licensed physician or other health care provider.
9 "Person" means an individual, a corporation, a business
10 trust, a trust, a partnership, an association, a government,
11 a governmental subdivision or agency, or any other legal
12 entity.
13 "Qualifying condition" means the existence of one or more
14 of the following conditions in a patient certified in writing
15 in the patient's medical record by the attending physician
16 and by at least one other qualified physician:
17 (1) "Terminal condition" means an illness or injury
18 for which there is no reasonable prospect of cure or
19 recovery, death is imminent, and the application of
20 life-sustaining treatment would only prolong the dying
21 process.
22 (2) "Permanent unconsciousness" means a condition
23 that, to a high degree of medical certainty, (i) will
24 last permanently, without improvement, (ii) in which
25 thought, sensation, purposeful action, social
26 interaction, and awareness of self and environment are
27 absent, and (iii) for which initiating or continuing
28 life-sustaining treatment, in light of the patient's
29 medical condition, provides only minimal medical benefit.
30 (3) "Incurable or irreversible condition" means an
31 illness or injury (i) for which there is no reasonable
32 prospect of cure or recovery, (ii) that ultimately will
33 cause the patient's death even if life-sustaining
34 treatment is initiated or continued, (iii) that imposes
-15- LRB9001282DJmbam01
1 severe pain or otherwise imposes an inhumane burden on
2 the patient, and (iv) for which initiating or continuing
3 life-sustaining treatment, in light of the patient's
4 medical condition, provides only minimal medical benefit.
5 The determination that a patient has a qualifying
6 condition creates no presumption regarding the application or
7 non-application of life-sustaining treatment. It is only
8 after a determination by the attending physician that the
9 patient has a qualifying condition that the surrogate
10 decision maker may consider whether or not to forgo
11 life-sustaining treatment. In making this decision, the
12 surrogate shall weigh the burdens on the patient of
13 initiating or continuing life-sustaining treatment against
14 the benefits of that treatment.
15 "Qualified physician" means a physician licensed to
16 practice medicine in all of its branches in Illinois who has
17 personally examined the patient.
18 "Surrogate decision maker" means an adult individual or
19 individuals who (i) have decisional capacity, (ii) are
20 available upon reasonable inquiry, (iii) are willing to make
21 medical treatment decisions regarding the forgoing of
22 life-sustaining treatment on behalf of a patient who lacks
23 decisional capacity and is diagnosed as suffering from a
24 qualifying condition, and (iv) are identified by the
25 attending physician in accordance with the provisions of this
26 Act as the person or persons who are to make those decisions
27 in accordance with the provisions of this Act.
28 (Source: P.A. 87-749; 88-670, eff. 12-2-94.)
29 (755 ILCS 40/15) (from Ch. 110 1/2, par. 851-15)
30 Sec. 15. Applicability. This Act applies to patients
31 who lack decisional capacity or who and have a qualifying
32 condition. This Act does not apply to instances in which the
33 patient has an operative and unrevoked living will under the
-16- LRB9001282DJmbam01
1 Illinois Living Will Act, an operative and unrevoked
2 declaration for mental health treatment under the Mental
3 Health Treatment Preferences Declaration Act, or an
4 authorized agent under a power of attorney for health care
5 under the Illinois Power of Attorney Act and the patient's
6 condition falls within the coverage of the living will, the
7 declaration for mental health treatment, or the power of
8 attorney for health care. In those instances, the living
9 will, declaration for mental health treatment, or power of
10 attorney for health care, as the case may be, shall be given
11 effect according to its terms. This Act does apply in
12 circumstances in which a patient has a qualifying condition
13 but the patient's condition does not fall within the coverage
14 of the living will, the declaration for mental health
15 treatment, or the power of attorney for health care.
16 Each health care facility shall maintain any advance
17 directives proffered by the patient or other authorized
18 person, including a do not resuscitate order, a living will,
19 a declaration for mental health treatment, or a power of
20 attorney for health care, in the patient's medical records
21 for the duration of the patient's stay. This Act does not
22 apply to patients without a qualifying condition. If a ,
23 unless the patient is an adult with decisional capacity, then
24 in which case the right to refuse medical treatment or
25 life-sustaining treatment does not require the presence of a
26 qualifying condition.
27 (Source: P.A. 87-749.)
28 (755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
29 Sec. 20. Private decision making process.
30 (a) Decisions whether to forgo life-sustaining or any
31 other form of medical treatment involving an adult patient
32 with decisional capacity may be made by that adult patient.
33 (b) Decisions whether to forgo life-sustaining treatment
-17- LRB9001282DJmbam01
1 on behalf of a patient without decisional capacity are
2 lawful, without resort to the courts or legal process, if the
3 patient has a qualifying condition and if the decisions are
4 made in accordance with one of the following paragraphs in
5 this subsection and otherwise meet the requirements of this
6 Act:
7 (1) Decisions whether to forgo life-sustaining
8 treatment on behalf of a minor or an adult patient who
9 lacks decisional capacity may be made by a surrogate
10 decision maker or makers in consultation with the
11 attending physician, in the order or priority provided in
12 Section 25. A surrogate decision maker shall make
13 decisions for the adult patient conforming as closely as
14 possible to what the patient would have done or intended
15 under the circumstances, taking into account evidence
16 that includes, but is not limited to, the patient's
17 personal, philosophical, religious and moral beliefs and
18 ethical values relative to the purpose of life, sickness,
19 medical procedures, suffering, and death. Where
20 possible, the surrogate shall determine how the patient
21 would have weighed the burdens and benefits of initiating
22 or continuing life-sustaining treatment against the
23 burdens and benefits of that treatment. In the event an
24 unrevoked advance directive, such as a living will, a
25 declaration for mental health treatment, or a power of
26 attorney for health care, is no longer valid due to a
27 technical deficiency or is not applicable to the
28 patient's condition, that document may be used as
29 evidence of a patient's wishes. The absence of a living
30 will, declaration for mental health treatment, or power
31 of attorney for health care shall not give rise to any
32 presumption as to the patient's preferences regarding the
33 initiation or continuation of life-sustaining procedures.
34 If the adult patient's wishes are unknown and remain
-18- LRB9001282DJmbam01
1 unknown after reasonable efforts to discern them or if
2 the patient is a minor, the decision shall be made on the
3 basis of the patient's best interests as determined by
4 the surrogate decision maker. In determining the
5 patient's best interests, the surrogate shall weigh the
6 burdens on and benefits to the patient of initiating or
7 continuing life-sustaining treatment against the burdens
8 and benefits of that treatment and shall take into
9 account any other information, including the views of
10 family and friends, that the surrogate decision maker
11 believes the patient would have considered if able to act
12 for herself or himself.
13 (2) Decisions whether to forgo life-sustaining
14 treatment on behalf of a minor or an adult patient who
15 lacks decisional capacity, but without any surrogate
16 decision maker or guardian being available determined
17 after reasonable inquiry by the health care provider, may
18 be made by a court appointed guardian. A court appointed
19 guardian shall be treated as a surrogate for the purposes
20 of this Act.
21 (b-5) Decisions concerning medical treatment on behalf
22 of a patient without decisional capacity are lawful, without
23 resort to the courts or legal process, if the patient does
24 not have a qualifying condition and if decisions are made in
25 accordance with one of the following paragraphs in this
26 subsection and otherwise meet the requirements of this Act:
27 (1) Decisions concerning medical treatment on
28 behalf of a minor or adult patient who lacks decisional
29 capacity may be made by a surrogate decision maker or
30 makers in consultation with the attending physician, in
31 the order of priority provided in Section 25 with the
32 exception that decisions to forgo life-sustaining
33 treatment may be made only when a patient has a
34 qualifying condition. A surrogate decision maker shall
-19- LRB9001282DJmbam01
1 make decisions for the patient conforming as closely as
2 possible to what the patient would have done or intended
3 under the circumstances, taking into account evidence
4 that includes, but is not limited to, the patient's
5 personal, philosophical, religious, and moral beliefs and
6 ethical values relative to the purpose of life, sickness,
7 medical procedures, suffering, and death. In the event
8 an unrevoked advance directive, such as a living will, a
9 declaration for mental health treatment, or a power of
10 attorney for health care, is no longer valid due to a
11 technical deficiency or is not applicable to the
12 patient's condition, that document may be used as
13 evidence of a patient's wishes. The absence of a living
14 will, declaration for mental health treatment, or power
15 of attorney for health care shall not give rise to any
16 presumption as to the patient's preferences regarding any
17 process. If the adult patient's wishes are unknown and
18 remain unknown after reasonable efforts to discern them
19 or if the patient is a minor, the decision shall be made
20 on the basis of the patient's best interests as
21 determined by the surrogate decision maker. In
22 determining the patient's best interests, the surrogate
23 shall weigh the burdens on and benefits to the patient of
24 the treatment against the burdens and benefits of that
25 treatment and shall take into account any other
26 information, including the views of family and friends,
27 that the surrogate decision maker believes the patient
28 would have considered if able to act for herself or
29 himself.
30 (2) Decisions concerning medical treatment on
31 behalf of a minor or adult patient who lacks decisional
32 capacity, but without any surrogate decision maker or
33 guardian being available as determined after reasonable
34 inquiry by the health care provider, may be made by a
-20- LRB9001282DJmbam01
1 court appointed guardian. A court appointed guardian
2 shall be treated as a surrogate for the purposes of this
3 Act.
4 (c) For the purposes of this Act, a patient or surrogate
5 decision maker is presumed to have decisional capacity in the
6 absence of actual notice to the contrary without regard to
7 advanced age. With respect to a patient, a diagnosis of
8 mental illness or mental retardation, of itself, is not a bar
9 to a determination of decisional capacity. A determination
10 that an adult patient lacks decisional capacity shall be made
11 by the attending physician to a reasonable degree of medical
12 certainty. The determination shall be in writing in the
13 patient's medical record and shall set forth the attending
14 physician's opinion regarding the cause, nature, and duration
15 of the patient's lack of decisional capacity. Before
16 implementation of a decision by a surrogate decision maker to
17 forgo life-sustaining treatment, at least one other qualified
18 physician must concur in the determination that an adult
19 patient lacks decisional capacity. The concurring
20 determination shall be made in writing in the patient's
21 medical record after personal examination of the patient.
22 The attending physician shall inform the patient that it has
23 been determined that the patient lacks decisional capacity
24 and that a surrogate decision maker will be making
25 life-sustaining treatment decisions on behalf of the patient.
26 Moreover, the patient shall be informed of the identity of
27 the surrogate decision maker and any decisions made by that
28 surrogate. If the person identified as the surrogate
29 decision maker is not a court appointed guardian and the
30 patient objects to the statutory surrogate decision maker or
31 any decision made by that surrogate decision maker, then the
32 provisions of this Act shall not apply.
33 (d) A surrogate decision maker acting on behalf of the
34 patient shall express decisions to forgo life-sustaining
-21- LRB9001282DJmbam01
1 treatment to the attending physician and one adult witness
2 who is at least 18 years of age. This decision and the
3 substance of any known discussion before making the decision
4 shall be documented by the attending physician in the
5 patient's medical record and signed by the witness.
6 (e) The existence of a qualifying condition shall be
7 documented in writing in the patient's medical record by the
8 attending physician and shall include its cause and nature,
9 if known. The written concurrence of another qualified
10 physician is also required.
11 (f) Once the provisions of this Act are complied with,
12 the attending physician shall thereafter promptly implement
13 the decision to forgo life-sustaining treatment on behalf of
14 the patient unless he or she believes that the surrogate
15 decision maker is not acting in accordance with his or her
16 responsibilities under this Act, or is unable to do so for
17 reasons of conscience or other personal views or beliefs.
18 (g) In the event of a patient's death as determined by a
19 physician, all life-sustaining treatment and other medical
20 care is to be terminated, unless the patient is an organ
21 donor, in which case appropriate organ donation treatment may
22 be continued temporarily.
23 (Source: P.A. 87-749.)
24 (755 ILCS 40/25) (from Ch. 110 1/2, par. 851-25)
25 Sec. 25. Surrogate decision making.
26 (a) When a patient has a qualifying condition and lacks
27 decisional capacity, the health care provider must make a
28 reasonable inquiry as to the availability and authority of a
29 health care agent under the Powers of Attorney for Health
30 Care Law. When no health care agent is authorized and
31 available, the health care provider must make a reasonable
32 inquiry as to the availability of possible surrogates listed
33 in items (1) through (4) of this subsection. The surrogate
-22- LRB9001282DJmbam01
1 decision makers, as identified by the attending physician,
2 are then authorized to make decisions as follows: (i) for
3 patients who lack decisional capacity and do not have a
4 qualifying condition, medical treatment decisions may be made
5 in accordance with subsection (b-5) of Section 20; and (ii)
6 for patients who lack decisional capacity and have a
7 qualifying condition, medical treatment decisions including
8 whether to forgo life-sustaining treatment on behalf of the
9 patient may be made without court order or judicial
10 involvement in the following order of priority:
11 (1) the patient's guardian of the person;
12 (2) the patient's spouse;
13 (3) any adult son or daughter of the patient;
14 (4) either parent of the patient;
15 (5) any adult brother or sister of the patient;
16 (6) any adult grandchild of the patient;
17 (7) a close friend of the patient;
18 (8) the patient's guardian of the estate.
19 The health care provider shall have the right to rely on
20 any of the above surrogates if the provider believes after
21 reasonable inquiry that neither a health care agent under the
22 Powers of Attorney for Health Care Law nor a surrogate of
23 higher priority is available.
24 Where there are multiple surrogate decision makers at the
25 same priority level in the hierarchy, it shall be the
26 responsibility of those surrogates to make reasonable efforts
27 to reach a consensus as to their decision on behalf of the
28 patient regarding the forgoing of life-sustaining treatment.
29 If 2 or more surrogates who are in the same category and have
30 equal priority indicate to the attending physician that they
31 disagree about the health care matter at issue, a majority of
32 the available persons in that category (or the parent with
33 custodial rights) shall control, unless the minority (or the
34 parent without custodial rights) initiates guardianship
-23- LRB9001282DJmbam01
1 proceedings in accordance with the Probate Act of 1975. No
2 health care provider or other person is required to seek
3 appointment of a guardian.
4 (b) After a surrogate has been identified, the name,
5 address, telephone number, and relationship of that person to
6 the patient shall be recorded in the patient's medical
7 record.
8 (c) Any surrogate who becomes unavailable for any reason
9 may be replaced by applying the provisions of Section 25 in
10 the same manner as for the initial choice of surrogate.
11 (d) In the event an individual of a higher priority to
12 an identified surrogate becomes available and willing to be
13 the surrogate, the individual with higher priority may be
14 identified as the surrogate. In the event an individual in a
15 higher, a lower, or the same priority level or a health care
16 provider seeks to challenge the priority of or the
17 life-sustaining treatment decision of the recognized
18 surrogate decision maker, the challenging party may initiate
19 guardianship proceedings in accordance with the Probate Act
20 of 1975.
21 (e) The surrogate decision maker shall have the same
22 right as the patient to receive medical information and
23 medical records and to consent to disclosure.
24 (Source: P.A. 87-749.)".