Health Care Surrogate Act

Health Care Surrogate Act including amendments effective January, 1998

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 40/15. Applicability

Sec. 15. Applicability. This Act applies to patients who lack decisional capacity or who 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 [755 ILCS 35/1 et seq.], an operative and unrevoked declaration for mental health treatment under the Mental Health Treatment Preferences Declaration Act [755 ILCS 43/1 et seq.], or an authorized agent under a power of attorney for health care under the Illinois Power of Attorney Act [755 ILCS 45/1-1 et seq.] 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 apply to patients without a qualifying condition. If a patient is an adult with decisional capacity, then the right to refuse medical treatment or life-sustaining treatment does not require the presence of a qualifying condition.

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.

755 ILCS 40/30. Reliance on authority of surrogate decision maker

Sec. 30. Reliance on authority of surrogate decision maker. (a) Every health care provider and other person (a "reliant") shall have the right to rely on any decision or direction by the surrogate decision maker (the "surrogate") that is not clearly contrary to this Act, to the same extent and with the same effect as though the decision or direction had been made or given by a patient with decisional capacity. Any person dealing with the surrogate may presume in the absence of actual knowledge to the contrary that the acts of the surrogate conform to the provisions of this Act. A reliant will not be protected who has actual knowledge that the surrogate is not entitled to act or that any particular action or inaction is contrary to the provisions of this Act.

(b) A health care provider (a "provider") who relies on and carries out a surrogate's directions and who acts with due care and in accordance with this Act shall not be subject to any claim based on lack of patient consent or to criminal prosecution or discipline for unprofessional conduct. Nothing in this Act shall be deemed to protect a provider from liability for the provider's own negligence in the performance of the provider's duties or in carrying out any instructions of the surrogate, and nothing in this Act shall be deemed to alter the law of negligence as it applies to the acts of any surrogate or provider.

(c) A surrogate who acts or fails to act with due care and in accordance with the provisions of this Act shall not be subject to criminal prosecution or any claim based upon lack of surrogate authority or failure to act. The surrogate shall not be liable merely because the surrogate may benefit from the act, has individual or conflicting interests in relation to the care and affairs of the patient, or acts in a different manner with respect to the patient and the surrogate's own care or interests.

755 ILCS 40/35. Conscience of health care provider; policy of the health care facility

Sec. 35. Conscience of health care provider; policy of the health care facility. A health care provider who because of personal views or beliefs or his or her conscience is unable to comply with the terms of a decision to forgo life-sustaining treatment shall, without undue delay, so notify the administration of the health care facility. The health care provider shall then assist the patient or surrogate in effectuating the timely transfer of the patient to another health care provider willing to comply with the wishes of the patient or the surrogate in accordance with this Act or, if necessary, arrange for the patient's transfer to another facility designated by the patient or surrogate decision maker. If the policies of a health care facility preclude compliance with a decision to forgo life-sustaining treatment, the facility shall take all reasonable steps to assist the patient or surrogate in effectuating the timely transfer of the patient to a facility in which the decision can be carried out.

755 ILCS 40/40. Neonates

Sec. 40. Neonates. Nothing in this Act supersedes the provisions of 45 C.F.R. 1340.15 concerning the provision of "appropriate" nutrition, hydration, and medication for neonates.

755 ILCS 40/45. Life insurance

Sec. 45. Life insurance. No policy of life insurance, or annuity or other type of contract that is conditioned on the life or death of the patient, shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining treatment from a patient in accordance with the provisions of this Act, notwithstanding any terms of the policy to the contrary.

755 ILCS 40/50. Not suicide or murder

Sec. 50. Not suicide or murder. The withholding or withdrawal of life-sustaining treatment from a patient in accordance with the provisions of this Act does not, for any purpose, constitute suicide or murder. The withholding or withdrawal of life-sustaining treatment from a patient in accordance with the provisions of this Act, however, shall not relieve any individual of responsibility for any criminal acts that may have caused the existence of the qualifying condition in the patient. Nothing in this Act shall be construed to condone, authorize, or approve mercy killing or assisted suicide.

755 ILCS 40/55. Preservation of existing rights

Sec. 55. Preservation of existing rights. The provisions of this Act are cumulative with existing law regarding an individual's right to consent or refuse to consent to medical treatment. The provisions of this Act shall not impair any existing rights or responsibilities that a health care provider, a patient, including a minor or a patient lacking decisional capacity, or a patient's family may have in regard to the withholding or withdrawal of life-sustaining treatment, including any rights to seek judicial review of decisions regarding life-sustaining treatment under the common law or statutes of this State to the extent they are not inconsistent with the provisions of this Act.