Public Act 90-0246 of the 90th General Assembly
Public Act 90-0246
HB0725 Enrolled LRB9001282DJcd
AN ACT concerning health care, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Right of Conscience Act is amended by
changing Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
and 14 and adding Sections 11.2, 11.3, and 11.4 as follows:
(745 ILCS 70/1) (from Ch. 111 1/2, par. 5301)
Sec. 1. Short title. This Act shall be known and may be
cited as the Health Care "Right of Conscience Act".
(Source: P.A. 80-616.)
(745 ILCS 70/2) (from Ch. 111 1/2, par. 5302)
Sec. 2. Findings and policy. The General Assembly finds
and declares that people and organizations hold different
beliefs about whether certain health care services are
morally acceptable. It is the public policy of the State of
Illinois to respect and protect the right of conscience of
all persons who refuse to obtain, receive or accept, or who
are engaged in, the delivery of, arrangement for, or payment
of health care medical services and medical care whether
acting individually, corporately, or in association with
other persons; and to prohibit all forms of discrimination,
disqualification, coercion, disability or imposition of
liability upon such persons or entities by reason of their
refusing to act contrary to their conscience or conscientious
convictions in refusing to obtain, receive, accept, or
deliver, pay for, or arrange for the payment of health care
medical services and medical care.
(Source: P.A. 80-616.)
(745 ILCS 70/3) (from Ch. 111 1/2, par. 5303)
Sec. 3. Definitions. As used in this Act, unless the
context clearly otherwise requires:
(a) "Health Medical care" means any phase of patient
care, including but not limited to, testing; diagnosis;
prognosis; ancillary research; instructions; family planning,
counselling, referrals, or any other advice in connection
with the use or procurement of contraceptives and
sterilization or abortion procedures; medication; or surgery
or other care or treatment rendered by a physician or
physicians, nurses, paraprofessionals or health care medical
facility, intended for the physical, emotional, and mental
well-being of persons;
(b) "Physician" means any person who is entitled to
provide medical services or medical care or is licensed by
the State of Illinois under the Medical Practice Act of 1987
to practice medicine in all its branches, whether as intern,
resident, medical trainee, or fully licensed practitioner of
medicine;
(c) "Health care Medical personnel" means any nurse,
nurses' aide aid, medical school student, professional,
paraprofessional or any other person who furnishes, or
assists in the furnishing of, health care medical care
services;
(d) "Health care Medical facility" means any public or
private hospital, clinic, center, medical school, medical
training institution, laboratory or diagnostic health care
facility, physician's office, infirmary, dispensary,
ambulatory surgical treatment center or other institution or
location wherein health care services are medical care is
provided to any person, including physician organizations and
associations, networks, joint ventures, and all other
combinations of those organizations; and
(e) "Conscience" means a sincerely held set of moral
convictions arising from belief in and relation to God, or
which, though not so derived, arises obtains from a place in
the life of its possessor parallel to that filled by God
among adherents to religious faiths; and.
(f) "Health care payer" means a health maintenance
organization, insurance company, management services
organization, or any other entity that pays for or arranges
for the payment of any health care or medical care service,
procedure, or product.
The above definitions include not only the traditional
combinations and forms of these persons and organizations but
also all new and emerging forms and combinations of these
persons and organizations.
(Source: P.A. 80-616.)
(745 ILCS 70/4) (from Ch. 111 1/2, par. 5304)
Sec. 4. Liability. No physician or health care medical
personnel shall be civilly or criminally liable to any
person, estate, public or private entity or public official
by reason of his or her refusal to perform, assist, counsel,
suggest, recommend, refer or participate in any way in any
particular form of health medical care service which is
contrary to the conscience of such physician or health care
medical personnel.
(Source: P.A. 80-616.)
(745 ILCS 70/5) (from Ch. 111 1/2, par. 5305)
Sec. 5. Discrimination. It shall be unlawful for any
person, public or private institution, or public official to
discriminate against any person in any manner, including but
not limited to, licensing, hiring, promotion, transfer, staff
appointment, hospital, managed care entity, or any other
privileges, because of such person's conscientious refusal to
receive, obtain, accept, perform, assist, counsel, suggest,
recommend, refer or participate in any way in any particular
form of health care services medical care contrary to his or
her conscience.
(Source: P.A. 80-616.)
(745 ILCS 70/6) (from Ch. 111 1/2, par. 5306)
Sec. 6. Duty of physicians and other health care
personnel. Nothing in this Act shall relieve a physician
from any duty, which may exist under any laws concerning
current standards, of normal medical practices and
procedures, to inform his or her patient of the patient's
condition, prognosis and risks, provided, however, that such
physician shall be under no duty to perform, assist, counsel,
suggest, recommend, refer or participate in any way in any
form of medical practice or health medical care service that
is contrary to his or her conscience.
Nothing in this Act shall be construed so as to relieve a
physician or other health care medical personnel from
obligations under the law of providing emergency medical
care.
(Source: P.A. 80-616.)
(745 ILCS 70/7) (from Ch. 111 1/2, par. 5307)
Sec. 7. Discrimination by employers or institutions. It
shall be unlawful for any public or private employer, entity,
agency, institution, official or person, including but not
limited to, a medical, nursing or other medical training
institution, to deny admission because of, to place any
reference in its application form concerning, to orally
question about, to impose any burdens in terms or conditions
of employment on, or to otherwise discriminate against, any
applicant, in terms of employment, admission to or
participation in any programs for which the applicant is
eligible, or to discriminate in relation thereto, in any
other manner, on account of the applicant's refusal to
receive, obtain, accept, perform, counsel, suggest,
recommend, refer, assist or participate in any way in any
forms of health medical care services contrary to his or her
conscience.
(Source: P.A. 80-616.)
(745 ILCS 70/8) (from Ch. 111 1/2, par. 5308)
Sec. 8. Denial of aid or benefits. It shall be unlawful
for any public official, guardian, agency, institution or
entity to deny any form of aid, assistance or benefits, or to
condition the reception in any way of any form of aid,
assistance or benefits, or in any other manner to coerce,
disqualify or discriminate against any person, otherwise
entitled to such aid, assistance or benefits, because that
person refuses to obtain, receive, accept, perform, assist,
counsel, suggest, recommend, refer or participate in any way
in any form of health medical care services contrary to his
or her conscience.
(Source: P.A. 80-616.)
(745 ILCS 70/9) (from Ch. 111 1/2, par. 5309)
Sec. 9. Liability. No person, association, or
corporation, which owns, operates, supervises, or manages a
health care medical facility shall be civilly or criminally
liable to any person, estate, or public or private entity by
reason of refusal of the health care such medical facility to
permit or provide any particular form of health medical care
service which violates the facility's conscience as
documented in its ethical guidelines, mission statement,
constitution, bylaws, articles of incorporation, or
regulations, or other governing documents.
Nothing in this act shall be construed so as to relieve a
physician or other health care medical personnel from
obligations under the law of providing emergency medical
care.
(Source: P.A. 80-616.)
(745 ILCS 70/10) (from Ch. 111 1/2, par. 5310)
Sec. 10. Discrimination against facility. It shall be
unlawful for any person, public or private institution or
public official to discriminate against any person,
association or corporation attempting to establish a new
health care medical facility or operating an existing health
care medical facility, in any manner, including but not
limited to, denial, deprivation or disqualification in
licensing, granting of authorizations, aids, assistance,
benefits, medical staff or any other privileges, and granting
authorization to expand, improve, or create any health care
medical facility, by reason of the refusal of such person,
association or corporation planning, proposing or operating a
health care medical facility, to permit or perform any
particular form of health medical care service which violates
the health care facility's conscience as documented in its
existing or proposed ethical guidelines, mission statement,
constitution, bylaws, articles of incorporation, or
regulations, or other governing documents.
(Source: P.A. 80-616.)
(745 ILCS 70/11) (from Ch. 111 1/2, par. 5311)
Sec. 11. Denial of aid or benefit to a facility. It
shall be unlawful for any public official, agency,
institution or entity to deny any form of aid, assistance,
grants or benefits; or in any other manner to coerce,
disqualify or discriminate against any person, association or
corporation attempting to establish a new health care medical
facility or operating an existing health care medical
facility which otherwise would be entitled to the aid,
assistance, grant or benefit because the existing or proposed
health care medical facility refuses to perform, assist,
counsel, suggest, recommend, refer or participate in any way
in any form of health medical care services contrary to the
health care facility's conscience as documented in its
existing or proposed ethical guidelines, mission statement,
constitution, bylaws, articles of incorporation, or
regulations, or other governing documents.
(Source: P.A. 80-616.)
(745 ILCS 70/11.2 new)
Sec. 11.2. Liability of health care payer. No health
care payer and no person, association, or corporation that
owns, operates, supervises, or manages a health care payer
shall be civilly or criminally liable to any person, estate,
or public or private entity by reason of refusal of the
health care payer to pay for or arrange for the payment of
any particular form of health care services that violate the
health care payer's conscience as documented in its ethical
guidelines, mission statement, constitution, bylaws, articles
of incorporation, regulations, or other governing documents.
(745 ILCS 70/11.3 new)
Sec. 11.3. Discrimination against health care payer in
licensing. It shall be unlawful for any person, public or
private institution, or public official to discriminate
against any person, association, or corporation (i)
attempting to establish a new health care payer or (ii)
operating an existing health care payer, in any manner,
including but not limited to, denial, deprivation, or
disqualification in licensing; granting of authorizations,
aids, assistance, benefits, or any other privileges; and
granting authorization to expand, improve, or create any
health care payer, because the person, association, or
corporation planning, proposing, or operating a health care
payer refuses to pay for or arrange for the payment of any
particular form of health care services that violates the
health care payer's conscience as documented in the existing
or proposed ethical guidelines, mission statement,
constitution, bylaws, articles of incorporation, regulations
or other governing documents.
(745 ILCS 70/11.4 new)
Sec. 11.4. Denial of aid or benefits to health care
payer for refusal to participate in certain health care. It
shall be unlawful for any public official, agency,
institution, or entity to deny any form of aid, assistance,
grants, or benefits; or in any other manner to coerce,
disqualify, or discriminate against any person, association,
or corporation attempting to establish a new health care
payer or operating an existing health care payer that
otherwise would be entitled to the aid, assistance, grant, or
benefit because the existing or proposed health care payer
refuses to pay for, arrange for the payment of, or
participate in any way in any form of health care services
contrary to the health care payer's conscience as documented
in its existing or proposed ethical guidelines, mission
statement, constitution, bylaws, articles of incorporation,
regulations, or other governing documents.
(745 ILCS 70/12) (from Ch. 111 1/2, par. 5312)
Sec. 12. Actions; damages. Any person, association,
corporation, entity or health care medical facility injured
by any public or private person, association, agency, entity
or corporation by reason of any action prohibited by this
Act, as now or hereafter amended, may commence a suit
therefor, and shall recover threefold the actual damages,
including pain and suffering, sustained by such person,
association, corporation, entity or health care medical
facility, the costs of the suit and reasonable attorney's
fees; but in no case shall recovery be less than $2,500 for
each violation in addition to costs of the suit and
reasonable attorney's fees. These damage remedies shall be
cumulative, and not exclusive of other remedies afforded
under any other state or federal law.
(Source: P.A. 80-616.)
(745 ILCS 70/13) (from Ch. 111 1/2, par. 5313)
Sec. 13. Liability for refusal to provide certain health
care. Nothing in this Act shall be construed as excusing any
person, public or private institution, or public official
from liability for refusal to permit or provide a particular
form of health medical care service if:
(a) the person, public or private institution or public
official has entered into a contract specifically to provide
that particular form of health medical care service; or
(b) the person, public or private institution or public
official has accepted federal or state funds for the sole
purpose of, and specifically conditioned upon, permitting or
providing that particular form of health medical care
service.
(Source: P.A. 80-616.)
(745 ILCS 70/14) (from Ch. 111 1/2, par. 5314)
Sec. 14. Supersedes other Acts. This Act shall
supersede all other Acts or parts of Acts to the extent that
any such prior Acts or parts of Acts are inconsistent with
the terms or operation of this Act.
(Source: P.A. 80-616.)
Section 10. The Health Care Surrogate Act is amended by
changing Sections 5, 10, 15, 20, and 25 as follows:
(755 ILCS 40/5) (from Ch. 110 1/2, par. 851-5)
Sec. 5. Legislative findings and purposes.
(a) Findings.
The legislature recognizes that all persons have a
fundamental right to make decisions relating to their own
medical treatment, including the right to forgo
life-sustaining treatment.
Lack of decisional capacity, alone, should not prevent
decisions to forgo life-sustaining treatment from being made
on behalf of persons who lack decisional capacity and have no
known applicable living will or power of attorney for health
care.
Uncertainty and lack of clarity in the law concerning the
making of private decisions concerning medical treatment and
to forgo life-sustaining treatment, without judicial
involvement, causes unnecessary emotional distress to the
individuals involved and unduly impedes upon the individual
right to forgo life-sustaining treatment.
The enactment of statutory guidelines for private
decision making will bring improved clarity and certainty to
the process for implementing decisions concerning medical
treatment and to forgo life-sustaining treatment and will
substantially reduce the associated emotional distress for
involved parties.
(b) Purposes.
This Act is intended to define the circumstances under
which private decisions by patients with decisional capacity
and by surrogate decision makers on behalf of patients
lacking decisional capacity to make medical treatment
decisions or to terminate life-sustaining treatment may be
made without judicial involvement of any kind.
This Act is intended to establish a process for that
private decision making.
This Act is intended to clarify the rights and
obligations of those involved in these private decisions by
or on behalf of patients.
This Act is not intended to condone, authorize, or
approve mercy killing or assisted suicide.
(Source: P.A. 87-749)
(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
Mature 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 life-sustaining 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 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 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 regarding the forgoing of
life-sustaining treatment on behalf of a patient who lacks
decisional capacity and is diagnosed as suffering from a
qualifying condition, 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. 87-749; 88-670, eff. 12-2-94.)
(755 ILCS 40/15) (from Ch. 110 1/2, par. 851-15)
Sec. 15. Applicability. This Act applies to patients
who lack decisional capacity or who and have a qualifying
condition. This Act does not apply to instances in which the
patient has an operative and unrevoked living will under the
Illinois Living Will Act, an operative and unrevoked
declaration for mental health treatment under the Mental
Health Treatment Preferences Declaration Act, or an
authorized agent under a power of attorney for health care
under the Illinois Power of Attorney Act and the patient's
condition falls within the coverage of the living will, the
declaration for mental health treatment, or the power of
attorney for health care. In those instances, the living
will, declaration for mental health treatment, or power of
attorney for health care, as the case may be, shall be given
effect according to its terms. This Act does apply in
circumstances in which a patient has a qualifying condition
but the patient's condition does not fall within the coverage
of the living will, the declaration for mental health
treatment, or the power of attorney for health care.
Each health care facility shall maintain any advance
directives proffered by the patient or other authorized
person, including a do not resuscitate order, a living will,
a declaration for mental health treatment, or a power of
attorney for health care, in the patient's medical records
for the duration of the patient's stay. This Act does not
apply to patients without a qualifying condition. If a,
unless the patient is an adult with decisional capacity, then
in which case the right to refuse medical treatment or
life-sustaining treatment does not require the presence of a
qualifying condition.
(Source: P.A. 87-749.)
(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 mental retardation, 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
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
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 continued temporarily.
(Source: P.A. 87-749.)
(755 ILCS 40/25) (from Ch. 110 1/2, par. 851-25)
Sec. 25. Surrogate decision making.
(a) When a patient has a qualifying condition and lacks
decisional capacity, the health care provider must make a
reasonable inquiry as to the availability and authority of a
health care agent under the Powers of Attorney for Health
Care Law. When no health care agent is authorized and
available, the health care provider must make a reasonable
inquiry as to the availability of possible surrogates listed
in items (1) through (4) of this subsection. The surrogate
decision makers, as identified by the attending physician,
are then authorized to make decisions as follows: (i) for
patients who lack decisional capacity and do not have a
qualifying condition, medical treatment decisions may be made
in accordance with subsection (b-5) of Section 20; and (ii)
for patients who lack decisional capacity and have a
qualifying condition, medical treatment decisions including
whether to forgo life-sustaining treatment on behalf of the
patient may be made without court order or judicial
involvement in the following order of priority:
(1) the patient's guardian of the person;
(2) the patient's spouse;
(3) any adult son or daughter of the patient;
(4) either parent of the patient;
(5) any adult brother or sister of the patient;
(6) any adult grandchild of the patient;
(7) a close friend of the patient;
(8) the patient's guardian of the estate.
The health care provider shall have the right to rely on
any of the above surrogates if the provider believes after
reasonable inquiry that neither a health care agent under the
Powers of Attorney for Health Care Law nor a surrogate of
higher priority is available.
Where there are multiple surrogate decision makers at the
same priority level in the hierarchy, it shall be the
responsibility of those surrogates to make reasonable efforts
to reach a consensus as to their decision on behalf of the
patient regarding the forgoing of life-sustaining treatment.
If 2 or more surrogates who are in the same category and have
equal priority indicate to the attending physician that they
disagree about the health care matter at issue, a majority of
the available persons in that category (or the parent with
custodial rights) shall control, unless the minority (or the
parent without custodial rights) initiates guardianship
proceedings in accordance with the Probate Act of 1975. No
health care provider or other person is required to seek
appointment of a guardian.
(b) After a surrogate has been identified, the name,
address, telephone number, and relationship of that person to
the patient shall be recorded in the patient's medical
record.
(c) Any surrogate who becomes unavailable for any reason
may be replaced by applying the provisions of Section 25 in
the same manner as for the initial choice of surrogate.
(d) In the event an individual of a higher priority to
an identified surrogate becomes available and willing to be
the surrogate, the individual with higher priority may be
identified as the surrogate. In the event an individual in a
higher, a lower, or the same priority level or a health care
provider seeks to challenge the priority of or the
life-sustaining treatment decision of the recognized
surrogate decision maker, the challenging party may initiate
guardianship proceedings in accordance with the Probate Act
of 1975.
(e) The surrogate decision maker shall have the same
right as the patient to receive medical information and
medical records and to consent to disclosure.
(Source: P.A. 87-749.)".