State of illinois health care surrogate act

Public Act 0140 102ND GENERAL ASSEMBLY

 Public Act 102-0140  
SB0109 Enrolled
LRB102 10223 LNS 15547 b
  AN ACT concerning civil law.  Be it enacted by the People of the State of Illinois, represented in the General Assembly:  Section 5. The Health Care Surrogate Act is amended by changing Sections 10, 20, and 65 as follows:  (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 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 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 health care practitioner 
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 health care practitioner" means an individual 
who has personally examined the patient and who is an Illinois 
licensed physician, advanced practice registered nurse, 
physician assistant, or resident with at least one year of 
graduate or specialty training in this State who holds an 
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. 
 
"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 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 
accordance with the provisions of this Act. 
(Source: P.A. 95-331, eff. 8-21-07.) 
 
(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 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 
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. 
 
(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 health 
care practitioner 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 
applied or continued temporarily. 
 
(h) A surrogate decision maker may execute a POLST 
portable medical orders form to forgo life-sustaining 
treatment consistent with this Section. 
(Source: P.A. 97-227, eff. 1-1-12.) 
 
(755 ILCS 40/65) 
 
Sec. 65. Department of Public Health Uniform POLST form. 
 
(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. 
 
(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 
requirement for admission to any facility or a precondition to 
the provision of services by any provider of health care 
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 
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. 
 
(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. 
 
(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.)