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90_HB1143
755 ILCS 40/10 from Ch. 110 1/2, par. 851-10
755 ILCS 40/15 from Ch. 110 1/2, par. 851-15
755 ILCS 40/20 from Ch. 110 1/2, par. 851-20
755 ILCS 40/25 from Ch. 110 1/2, par. 851-25
Amends the Health Care Surrogate Act. Adds the patient's
domestic partner to the list of possible health care
surrogates. Provides that the Act applies to patents who lack
decisional capacity (now lack decisional capacity and have a
qualifying condition).
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1 AN ACT to amend the Health Care Surrogate Act by changing
2 Sections 10, 15, 20, and 25.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Health Care Surrogate Act is amended by
6 changing Sections 10, 15, 20, and 25 as follows:
7 (755 ILCS 40/10) (from Ch. 110 1/2, par. 851-10)
8 Sec. 10. Definitions.
9 "Adult" means a person who is (i) 18 years of age or
10 older or (ii) an emancipated minor under the Emancipation of
11 Mature Minors Act.
12 "Artificial nutrition and hydration" means supplying food
13 and water through a conduit, such as a tube or intravenous
14 line, where the recipient is not required to chew or swallow
15 voluntarily, including, but not limited to, nasogastric
16 tubes, gastrostomies, jejunostomies, and intravenous
17 infusions. Artificial nutrition and hydration does not
18 include assisted feeding, such as spoon or bottle feeding.
19 "Available" means that a person is not "unavailable". A
20 person is unavailable if (i) the person's existence is not
21 known, (ii) the person has not been able to be contacted by
22 telephone or mail, or (iii) the person lacks decisional
23 capacity, refuses to accept the office of surrogate, or is
24 unwilling to respond in a manner that indicates a choice
25 among the life-sustaining treatment matters at issue.
26 "Attending physician" means the physician selected by or
27 assigned to the patient who has primary responsibility for
28 treatment and care of the patient and who is a licensed
29 physician in Illinois. If more than one physician shares
30 that responsibility, any of those physicians may act as the
31 attending physician under this Act.
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1 "Close friend" means any person 18 years of age or older
2 who has exhibited special care and concern for the patient
3 and who presents an affidavit to the attending physician
4 stating that he or she (i) is a close friend of the patient,
5 (ii) is willing and able to become involved in the patient's
6 health care, and (iii) has maintained such regular contact
7 with the patient as to be familiar with the patient's
8 activities, health, and religious and moral beliefs. The
9 affidavit must also state facts and circumstances that
10 demonstrate that familiarity.
11 "Death" means when, according to accepted medical
12 standards, there is (i) an irreversible cessation of
13 circulatory and respiratory functions or (ii) an irreversible
14 cessation of all functions of the entire brain, including the
15 brain stem.
16 "Decisional capacity" means the ability to understand and
17 appreciate the nature and consequences of a decision
18 regarding forgoing life-sustaining treatment and the ability
19 to reach and communicate an informed decision in the matter
20 as determined by the attending physician.
21 "Domestic partner" means an individual in a long-term
22 relationship of indefinite duration with the patient in which
23 the individual has demonstrated an actual commitment to the
24 patient similar to the commitment of a spouse and in which
25 the individual and the patient consider themselves to be
26 responsible for each others well-being.
27 "Forgo life-sustaining treatment" means to withhold,
28 withdraw, or terminate all or any portion of life-sustaining
29 treatment with knowledge that the patient's death is likely
30 to result.
31 "Guardian" means a court appointed guardian of the person
32 who serves as a representative of a minor or as a
33 representative of a person under legal disability.
34 "Health care facility" means a type of health care
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1 provider commonly known by a wide variety of titles,
2 including but not limited to, hospitals, medical centers,
3 nursing homes, rehabilitation centers, long term or tertiary
4 care facilities, and other facilities established to
5 administer health care and provide overnight stays in their
6 ordinary course of business or practice.
7 "Health care provider" means a person that is licensed,
8 certified, or otherwise authorized or permitted by the law of
9 this State to administer health care in the ordinary course
10 of business or practice of a profession, including, but not
11 limited to, physicians, nurses, health care facilities, and
12 any employee, officer, director, agent, or person under
13 contract with such a person.
14 "Imminent" (as in "death is imminent") means a
15 determination made by the attending physician according to
16 accepted medical standards that death will occur in a
17 relatively short period of time, even if life-sustaining
18 treatment is initiated or continued.
19 "Life-sustaining treatment" means any medical treatment,
20 procedure, or intervention that, in the judgment of the
21 attending physician, when applied to a patient with a
22 qualifying condition, would not be effective to remove the
23 qualifying condition or would serve only to prolong the dying
24 process. Those procedures can include, but are not limited
25 to, assisted ventilation, renal dialysis, surgical
26 procedures, blood transfusions, and the administration of
27 drugs, antibiotics, and artificial nutrition and hydration.
28 "Minor" means an individual who is not an adult as
29 defined in this Act.
30 "Parent" means a person who is the natural or adoptive
31 mother or father of the child and whose parental rights have
32 not been terminated by a court of law.
33 "Patient" means an adult or minor individual, unless
34 otherwise specified, under the care or treatment of a
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1 licensed physician or other health care provider.
2 "Person" means an individual, a corporation, a business
3 trust, a trust, a partnership, an association, a government,
4 a governmental subdivision or agency, or any other legal
5 entity.
6 "Qualifying condition" means the existence of one or more
7 of the following conditions in a patient certified in writing
8 in the patient's medical record by the attending physician
9 and by at least one other qualified physician:
10 (1) "Terminal condition" means an illness or injury
11 for which there is no reasonable prospect of cure or
12 recovery, death is imminent, and the application of
13 life-sustaining treatment would only prolong the dying
14 process.
15 (2) "Permanent unconsciousness" means a condition
16 that, to a high degree of medical certainty, (i) will
17 last permanently, without improvement, (ii) in which
18 thought, sensation, purposeful action, social
19 interaction, and awareness of self and environment are
20 absent, and (iii) for which initiating or continuing
21 life-sustaining treatment, in light of the patient's
22 medical condition, provides only minimal medical benefit.
23 (3) "Incurable or irreversible condition" means an
24 illness or injury (i) for which there is no reasonable
25 prospect of cure or recovery, (ii) that ultimately will
26 cause the patient's death even if life-sustaining
27 treatment is initiated or continued, (iii) that imposes
28 severe pain or otherwise imposes an inhumane burden on
29 the patient, and (iv) for which initiating or continuing
30 life-sustaining treatment, in light of the patient's
31 medical condition, provides only minimal medical benefit.
32 The determination that a patient has a qualifying
33 condition creates no presumption regarding the application or
34 non-application of life-sustaining treatment. It is only
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1 after a determination by the attending physician that the
2 patient has a qualifying condition that the surrogate
3 decision maker may consider whether or not to forgo
4 life-sustaining treatment. In making this decision, the
5 surrogate shall weigh the burdens on the patient of
6 initiating or continuing life-sustaining treatment against
7 the benefits of that treatment.
8 "Qualified physician" means a physician licensed to
9 practice medicine in all of its branches in Illinois who has
10 personally examined the patient.
11 "Surrogate decision maker" means an adult individual or
12 individuals who (i) have decisional capacity, (ii) are
13 available upon reasonable inquiry, (iii) are willing to make
14 decisions regarding the forgoing of life-sustaining treatment
15 on behalf of a patient who lacks decisional capacity and is
16 diagnosed as suffering from a qualifying condition, and (iv)
17 are identified by the attending physician in accordance with
18 the provisions of this Act as the person or persons who are
19 to make those decisions in accordance with the provisions of
20 this Act.
21 (Source: P.A. 87-749; 88-670, eff. 12-2-94.)
22 (755 ILCS 40/15) (from Ch. 110 1/2, par. 851-15)
23 Sec. 15. Applicability. This Act applies to patients
24 who lack decisional capacity and have a qualifying condition.
25 This Act does not apply to instances in which the patient has
26 an operative and unrevoked living will under the Illinois
27 Living Will Act or an authorized agent under a power of
28 attorney for health care under the Illinois Power of Attorney
29 Act and the patient's condition falls within the coverage of
30 the living will or the power of attorney for health care. In
31 those instances, the living will or power of attorney for
32 health care, as the case may be, shall be given effect
33 according to its terms. This Act does apply in circumstances
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1 in which a patient has a qualifying condition but the
2 patient's condition does not fall within the coverage of the
3 living will or the power of attorney for health care.
4 Each health care facility shall maintain any advance
5 directives proffered by the patient or other authorized
6 person, including a do not resuscitate order, a living will,
7 or a power of attorney for health care, in the patient's
8 medical records for the duration of the patient's stay. This
9 Act does not apply to patients without a qualifying
10 condition, unless the patient is an adult with decisional
11 capacity, in which case the right to refuse life-sustaining
12 treatment does not require the presence of a qualifying
13 condition.
14 (Source: P.A. 87-749.)
15 (755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
16 Sec. 20. Private decision making process.
17 (a) Decisions whether to forgo life-sustaining or any
18 other form of medical treatment involving an adult patient
19 with decisional capacity may be made by that adult patient.
20 (b) Decisions whether to forgo life-sustaining treatment
21 on behalf of a patient without decisional capacity are
22 lawful, without resort to the courts or legal process, if the
23 patient has a qualifying condition and if the decisions are
24 made in accordance with one of the following paragraphs in
25 this subsection and otherwise meet the requirements of this
26 Act:
27 (1) Decisions whether to forgo life-sustaining
28 treatment on behalf of a minor or an adult patient who
29 lacks decisional capacity may be made by a surrogate
30 decision maker or makers in consultation with the
31 attending physician, in the order or priority provided in
32 Section 25. A surrogate decision maker shall make
33 decisions for the adult patient conforming as closely as
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1 possible to what the patient would have done or intended
2 under the circumstances, taking into account evidence
3 that includes, but is not limited to, the patient's
4 personal, philosophical, religious and moral beliefs and
5 ethical values relative to the purpose of life, sickness,
6 medical procedures, suffering, and death. Where
7 possible, the surrogate shall determine how the patient
8 would have weighed the burdens and benefits of initiating
9 or continuing life-sustaining treatment against the
10 burdens and benefits of that treatment. In the event an
11 unrevoked advance directive, such as a living will or a
12 power of attorney for health care, is no longer valid due
13 to a technical deficiency or is not applicable to the
14 patient's condition, that document may be used as
15 evidence of a patient's wishes. The absence of a living
16 will or power of attorney for health care shall not give
17 rise to any presumption as to the patient's preferences
18 regarding the initiation or continuation of
19 life-sustaining procedures. If the adult patient's
20 wishes are unknown and remain unknown after reasonable
21 efforts to discern them or if the patient is a minor, the
22 decision shall be made on the basis of the patient's best
23 interests as determined by the surrogate decision maker.
24 In determining the patient's best interests, the
25 surrogate shall weigh the burdens on and benefits to the
26 patient of initiating or continuing life-sustaining
27 treatment against the burdens and benefits of that
28 treatment and shall take into account any other
29 information, including the views of family and friends,
30 that the surrogate decision maker believes the patient
31 would have considered if able to act for herself or
32 himself.
33 (2) Decisions whether to forgo life-sustaining
34 treatment on behalf of a minor or an adult patient who
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1 lacks decisional capacity, but without any surrogate
2 decision maker or guardian being available determined
3 after reasonable inquiry by the health care provider, may
4 be made by a court appointed guardian. A court appointed
5 guardian shall be treated as a surrogate for the purposes
6 of this Act.
7 (c) For the purposes of this Act, a patient or surrogate
8 decision maker is presumed to have decisional capacity in the
9 absence of actual notice to the contrary without regard to
10 advanced age. With respect to a patient, a diagnosis of
11 mental illness or mental retardation, of itself, is not a bar
12 to a determination of decisional capacity. A determination
13 that an adult patient lacks decisional capacity shall be made
14 by the attending physician to a reasonable degree of medical
15 certainty. The determination shall be in writing in the
16 patient's medical record and shall set forth the attending
17 physician's opinion regarding the cause, nature, and duration
18 of the patient's lack of decisional capacity. Before
19 implementation of a decision by a surrogate decision maker to
20 forgo life-sustaining treatment, at least one other qualified
21 physician must concur in the determination that an adult
22 patient lacks decisional capacity. The concurring
23 determination shall be made in writing in the patient's
24 medical record after personal examination of the patient.
25 The attending physician shall inform the patient that it has
26 been determined that the patient lacks decisional capacity
27 and that a surrogate decision maker will be making
28 life-sustaining treatment decisions on behalf of the patient.
29 Moreover, the patient shall be informed of the identity of
30 the surrogate decision maker and any decisions made by that
31 surrogate. If the person identified as the surrogate
32 decision maker is not a court appointed guardian and the
33 patient objects to the statutory surrogate decision maker or
34 any decision made by that surrogate decision maker, then the
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1 provisions of this 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
5 who is at least 18 years of age. This decision and the
6 substance of any known discussion before making the decision
7 shall be documented by the attending physician in the
8 patient's medical record and signed by the witness.
9 (e) (Blank) The existence of a qualifying condition
10 shall be documented in writing in the patient's medical
11 record by the attending physician and shall include its cause
12 and nature, if known. The written concurrence of another
13 qualified physician is also required.
14 (f) Once the provisions of this Act are complied with,
15 the attending physician shall thereafter promptly implement
16 the decision to forgo life-sustaining treatment on behalf of
17 the patient unless he or she believes that the surrogate
18 decision 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
24 donor, in which case appropriate organ donation treatment may
25 be continued temporarily.
26 (Source: P.A. 87-749.)
27 (755 ILCS 40/25) (from Ch. 110 1/2, par. 851-25)
28 Sec. 25. Surrogate decision making.
29 (a) When a patient has a qualifying condition and lacks
30 decisional capacity, the health care provider must make a
31 reasonable inquiry as to the availability and authority of a
32 health care agent under the Powers of Attorney for Health
33 Care Law. When no health care agent is authorized and
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1 available, the health care provider must make a reasonable
2 inquiry as to the availability of possible surrogates listed
3 in items (1) through (4) of this subsection. The surrogate
4 decision makers, as identified by the attending physician,
5 are then authorized to make decisions whether to forgo
6 life-sustaining treatment on behalf of the patient without
7 court order or judicial involvement in the following order of
8 priority:
9 (1) the patient's guardian of the person;
10 (2) the patient's spouse;
11 (3) any adult son or daughter of the patient;
12 (3.5) the patient's domestic partner;
13 (4) either parent of the patient;
14 (5) any adult brother or sister of the patient;
15 (6) any adult grandchild of the patient;
16 (7) a close friend of the patient;
17 (8) the patient's guardian of the estate.
18 The health care provider shall have the right to rely on
19 any of the above surrogates if the provider believes after
20 reasonable inquiry that neither a health care agent under the
21 Powers of Attorney for Health Care Law nor a surrogate of
22 higher priority is available.
23 Where there are multiple surrogate decision makers at the
24 same priority level in the hierarchy, it shall be the
25 responsibility of those surrogates to make reasonable efforts
26 to reach a consensus as to their decision on behalf of the
27 patient regarding the forgoing of life-sustaining treatment.
28 If 2 or more surrogates who are in the same category and have
29 equal priority indicate to the attending physician that they
30 disagree about the health care matter at issue, a majority of
31 the available persons in that category (or the parent with
32 custodial rights) shall control, unless the minority (or the
33 parent without custodial rights) initiates guardianship
34 proceedings in accordance with the Probate Act of 1975. No
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1 health care provider or other person is required to seek
2 appointment of a guardian.
3 (b) After a surrogate has been identified, the name,
4 address, telephone number, and relationship of that person to
5 the patient shall be recorded in the patient's medical
6 record.
7 (c) Any surrogate who becomes unavailable for any reason
8 may be replaced by applying the provisions of Section 25 in
9 the same manner as for the initial choice of surrogate.
10 (d) In the event an individual of a higher priority to
11 an identified surrogate becomes available and willing to be
12 the surrogate, the individual with higher priority may be
13 identified as the surrogate. In the event an individual in a
14 higher, a lower, or the same priority level or a health care
15 provider seeks to challenge the priority of or the
16 life-sustaining treatment decision of the recognized
17 surrogate decision maker, the challenging party may initiate
18 guardianship proceedings in accordance with the Probate Act
19 of 1975.
20 (e) The surrogate decision maker shall have the same
21 right as the patient to receive medical information and
22 medical records and to consent to disclosure.
23 (Source: P.A. 87-749.)