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| Public Act 102-0140 | ||||
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Health Care Surrogate Act is amended by | ||||
changing Sections 10, 20, and 65 as follows:
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(755 ILCS 40/10) (from Ch. 110 1/2, par. 851-10)
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Sec. 10. Definitions.
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"Adult" means a person who is (i) 18 years of age or older | ||||
or (ii) an
emancipated minor under the Emancipation of
Minors | ||||
Act.
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"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.
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"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
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unwilling to respond in a manner that indicates a choice among | ||||
the
treatment matters at issue.
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"Attending physician" means the physician selected by or
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assigned to the patient who has primary responsibility for
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treatment and care of the patient and who is a licensed | ||
physician
in Illinois. If more than one physician shares that
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responsibility, any of those physicians may act as the | ||
attending
physician under this Act.
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"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
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familiarity.
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"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.
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"Decisional capacity" means the ability to understand and
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appreciate the nature and consequences of a decision regarding
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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.
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"Forgo life-sustaining treatment" means to withhold,
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withdraw, or terminate all or any portion of life-sustaining
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treatment with knowledge that the patient's death is likely to
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result.
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"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.
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"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,
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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.
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"Health care provider" means a person that is licensed,
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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.
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"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.
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"Life-sustaining treatment" means any medical treatment,
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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.
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"Minor" means an individual who is not an adult as defined | ||
in
this Act.
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"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.
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"Patient" means an adult or minor individual, unless | ||
otherwise
specified, under the care or treatment of a licensed | ||
physician or
other health care provider.
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"Person" means an individual, a corporation, a business | ||
trust,
a trust, a partnership, an association, a government, a
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governmental subdivision or agency, or any other legal entity.
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"Qualifying condition" means the existence of one or more | ||
of
the following conditions in a patient certified in writing | ||
in the
patient's medical record by the attending physician and | ||
by at least
one other qualified health care practitioner | ||
physician:
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(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.
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(2) "Permanent unconsciousness" means a condition | ||
that,
to a high degree of medical certainty, (i) will last
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permanently, without improvement, (ii) in which
thought, | ||
sensation, purposeful action, social interaction, and
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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.
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(3) "Incurable or irreversible condition" means an
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illness or injury (i) for which there is no reasonable
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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.
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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
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life-sustaining treatment against the benefits of that | ||
treatment.
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"Qualified health care practitioner" means an individual
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who has personally examined the patient and who is an Illinois
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licensed physician, advanced practice registered nurse,
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physician assistant, or resident with at least one year of
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graduate or specialty training in this State who holds an
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Illinois temporary license to practice medicine and is | ||
enrolled
in a residency program accredited by the Liaison | ||
Committee on
Graduate Medical Education or the Bureau of | ||
Professional
Education of the American Osteopathic | ||
Association. | ||
"Physician" means a physician licensed to practice | ||
medicine in all its branches in this State. | ||
"Qualified physician" means a physician licensed to | ||
practice
medicine in all of its branches in Illinois who has | ||
personally
examined the patient.
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"Surrogate decision maker" means an adult individual or
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individuals who (i) have decisional capacity, (ii) are | ||
available
upon reasonable inquiry, (iii) are willing to make | ||
medical treatment
decisions on behalf of
a patient who lacks | ||
decisional capacity, and (iv) are identified by
the attending | ||
physician in accordance with the provisions of this
Act as the | ||
person or persons who are to make those decisions in
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accordance with the provisions of this Act.
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(Source: P.A. 95-331, eff. 8-21-07.)
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(755 ILCS 40/20) (from Ch. 110 1/2, par. 851-20)
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Sec. 20. Private decision making process.
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(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.
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(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:
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(1) Decisions whether to forgo life-sustaining
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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,
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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
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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
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condition, that document may be used as evidence of a
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patient's wishes. The absence of a living will, | ||
declaration for mental
health treatment, or power of
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attorney for health care shall not give rise to any
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presumption as to the patient's preferences regarding the
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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.
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(2) Decisions whether to forgo life-sustaining
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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.
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(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:
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(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
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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,
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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,
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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.
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(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
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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.
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(c) For the purposes of this Act, a patient or surrogate
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decision maker is presumed to have decisional capacity in the
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absence of actual notice to the contrary without regard to | ||
advanced age.
With respect to a patient, a
diagnosis of mental | ||
illness or an intellectual disability, of itself, is
not a bar | ||
to a determination of decisional capacity. A
determination | ||
that an adult patient lacks decisional capacity shall
be made | ||
by the attending physician to a reasonable degree of
medical | ||
certainty. The determination shall be in writing in the
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patient's medical record and shall set forth the attending | ||
physician's opinion regarding the cause, nature, and duration | ||
of
the patient's lack of decisional capacity. Before | ||
implementation
of a decision by a surrogate decision maker to | ||
forgo
life-sustaining treatment, at least one other qualified | ||
health care practitioner physician
must concur in the | ||
determination that an adult patient lacks decisional
capacity. | ||
The concurring determination shall be made in writing in
the | ||
patient's medical record after personal examination of the
| ||
patient. The attending physician shall inform the patient that | ||
it
has been determined that the patient lacks decisional | ||
capacity and
that a surrogate decision maker will be making | ||
life-sustaining
treatment decisions on behalf of the patient. | ||
Moreover, the
patient shall be informed of the identity of the | ||
surrogate decision
maker and any decisions made by that | ||
surrogate. If the person
identified as the surrogate decision | ||
maker is not a court appointed
guardian and the patient | ||
objects to the statutory surrogate
decision maker or any | ||
decision made by that surrogate decision
maker, then the | ||
provisions of this Act shall not apply.
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(d) A surrogate decision maker acting on behalf of
the | ||
patient shall express decisions to forgo life-sustaining
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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.
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(e) The existence of a qualifying condition shall be
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documented in writing in the patient's medical record by the
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attending physician and shall include its cause and nature, if
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known. The written concurrence of another qualified health | ||
care practitioner physician is
also required.
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(f) Once the provisions of this Act are complied with, the
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attending physician shall thereafter promptly implement the
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decision to forgo life-sustaining treatment on behalf of the
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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.
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(g) In the event of a patient's death as determined by a
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physician, all life-sustaining treatment and other medical | ||
care is
to be terminated, unless the patient is an organ donor, | ||
in which
case appropriate organ donation treatment may be | ||
applied or continued
temporarily.
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(h) A surrogate decision maker may execute a POLST | ||
portable medical orders form to forgo life-sustaining | ||
treatment consistent with this Section.
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(Source: P.A. 97-227, eff. 1-1-12.)
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(755 ILCS 40/65)
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Sec. 65. Department of Public Health Uniform POLST form.
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(a) An individual of sound mind and having reached the age | ||
of majority or
having
obtained the status of an emancipated | ||
person pursuant to the Emancipation of
Minors Act may execute | ||
a document (consistent with the Department of Public
Health | ||
Uniform POLST form described in Section 2310-600 of the | ||
Department of Public Health Powers and Duties Law of the
Civil | ||
Administrative Code of Illinois) directing that
resuscitating | ||
efforts shall not be implemented. This individual may also | ||
revoke the document at will. Such a document may also
be | ||
executed by a qualified an attending health care practitioner. | ||
If more than one practitioner shares that responsibility for | ||
the treatment and care of an individual, any of the qualified | ||
attending health care practitioners may act under this | ||
Section. Notwithstanding the existence of a do-not-resuscitate | ||
(DNR)
order or Department of Public Health Uniform POLST form, | ||
appropriate organ donation treatment may be applied or | ||
continued
temporarily in the event of the patient's death, in | ||
accordance with subsection
(g) of Section 20 of this Act, if | ||
the patient is an organ donor.
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(a-5) Execution of a Department of Public Health Uniform | ||
POLST form is voluntary; no person can be required to execute | ||
the either form. Execution of a POLST form shall not be a
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requirement for admission to any facility or a precondition to
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the provision of services by any provider of health care
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services. A person who has executed a Department of Public | ||
Health Uniform POLST form should review the form annually and | ||
when the person's condition changes. | ||
(b) Consent to a Department of Public Health Uniform POLST | ||
form may be obtained from the individual, or from
another
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person at the individual's direction, or from the individual's | ||
legal guardian,
agent under a
power of attorney for health | ||
care, or surrogate decision maker, and witnessed
by one | ||
individual 18 years of age or older, who attests that the | ||
individual, other person, guardian, agent, or surrogate (1) | ||
has had an opportunity to read the form; and (2) has signed the | ||
form or acknowledged his or her signature or mark on the form | ||
in the witness's presence.
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(b-5) As used in this Section: , | ||
"attending health care practitioner" means an individual | ||
who (1) is an Illinois licensed physician, advanced practice | ||
registered nurse, physician assistant, or licensed resident | ||
after completion of one year in a program; (2) is selected by | ||
or assigned to the patient; and (3) has primary responsibility | ||
for treatment and care of the patient. | ||
"POLST" means practitioner orders for life-sustaining | ||
treatments. | ||
"POLST portable medical orders form" means a medical | ||
orders form, including, but not limited to, a Medical Orders | ||
for Scope of Treatment (MOST), Medical Orders for Life | ||
Sustaining Treatment (MOLST), Physician Orders for Scope of | ||
Treatment (POST), or Physician Orders for Life Sustaining | ||
Treatment (POLST) form, that is formally authorized by a state | ||
or territory within the United States. | ||
(c) Nothing in this Section shall be construed to affect | ||
the ability of an individual to include instructions in an | ||
advance directive, such as a power of attorney for health | ||
care. The uniform form may, but need not, be in the form | ||
adopted by the
Department
of
Public Health pursuant to Section | ||
2310-600 of the Department of Public Health
Powers and
Duties | ||
Law (20 ILCS 2310/2310-600).
Except as otherwise provided by | ||
law, emergency medical service personnel, a health care | ||
provider, or a health care facility shall comply with a | ||
Department of Public Health Uniform POLST form, National POLST | ||
form, another state's POLST portable medical orders form, or | ||
an out-of-hospital Do Not Resuscitate (DNR) order sanctioned | ||
by a state in the United States that: (i) has been executed by | ||
an adult; and (ii) is apparent and immediately available.
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(d) A health care professional or health care provider may | ||
presume, in the
absence
of knowledge to the contrary, that a | ||
completed Department of Public Health
Uniform POLST form, | ||
National POLST form, another state's POLST portable medical | ||
orders form, or an out-of-hospital Do Not Resuscitate (DNR) | ||
order sanctioned by a state in the United States executed by an | ||
adult,
or a copy of that form or a previous version of the | ||
uniform form, is valid. A health care professional or
health
| ||
care provider, or an employee of a health care professional or | ||
health care
provider, who in
good faith complies
with a | ||
cardiopulmonary resuscitation (CPR) or life-sustaining | ||
treatment order, Department of Public Health Uniform POLST | ||
form, or a previous version of the uniform form made in | ||
accordance with this Act is not,
as a result of that | ||
compliance, subject to any criminal or civil liability,
except | ||
for willful and wanton misconduct, and
may not be found to have | ||
committed an act of unprofessional conduct. | ||
(d-5) Before voiding or revoking a Department of Public
| ||
Health Uniform POLST form, National POLST form, or another
| ||
state's POLST portable medical orders form executed by the | ||
individual, that individual's legally authorized
surrogate | ||
decision maker shall first: (1) engage in
consultation with a | ||
qualified health care practitioner; (2)
consult the patient's | ||
advance directive, if available; and (3)
make a good faith | ||
effort to act consistently, at all times,
with the patient's | ||
known wishes, using substituted judgment as
the standard. If | ||
the patient's wishes are unknown and remain
unknown after | ||
reasonable efforts to discern them, the decision
shall be made | ||
on the basis of the patient's best interests as
determined by | ||
the surrogate decision maker. A qualified
health care | ||
practitioner shall document the reasons for this
action in the | ||
patient's medical record. This process does not apply to an | ||
individual wanting to revoke his or her own POLST form. | ||
(e) Nothing in this Section or this amendatory Act of the | ||
94th General Assembly or this amendatory Act of the 98th | ||
General Assembly shall be construed to affect the ability of a | ||
physician or other practitioner to make a do-not-resuscitate | ||
order.
| ||
(Source: P.A. 99-319, eff. 1-1-16; 100-513, eff. 1-1-18.)
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