Sec. 1. Short title. This Act may be cited as the Health Care Surrogate
Act.
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.
755 ILCS 40/10. Definitions
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 [750 ILCS 30/1 et seq.].
"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
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 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.
755 ILCS 40/20. Private decision making process
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 [755 ILCS 40/25].
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 [755 ILCS 40/25] 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.
755 ILCS 40/25. Surrogate decision making
Sec. 25. Surrogate decision making. (a) When a patient 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 [755 ILCS 45/4-1 et seq.]. 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 [755 ILCS 40/20];
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 [755
ILCS 45/4-1 et seq.] 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 [755 ILCS 5/1-1 et seq.]. 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 [755 ILCS 40/25] 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 [755 ILCS 5/1-1 et seq.].
(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.