SB 3398

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Full Text of SB3398
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	SB3398 - 104th General Assembly
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		SB3398 Enrolled		LRB104 17550 JRC 30978 b
1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Health Care Surrogate Act is amended by
5changing Sections 25 and 30 as follows:
6    (755 ILCS 40/25)  (from Ch. 110 1/2, par. 851-25)
7    Sec. 25. Surrogate decision making.
8    (a) When a patient lacks decisional capacity, the health
9care provider must make a reasonable inquiry as to the
10availability and authority of a health care agent under the
11Powers of Attorney for Health Care Law. When no health care
12agent is authorized and available, the health care provider
13must make a reasonable inquiry as to the availability of
14possible surrogates listed in items (1) through (4) of this
15subsection. For purposes of this Section, a reasonable inquiry
16includes, but is not limited to, identifying a member of the
17patient's family or other health care agent by examining the
18patient's personal effects or medical records. If a family
19member or other health care agent is identified, an attempt to
20contact that person by telephone must be made within 24 hours
21after a determination by the provider that the patient lacks
22decisional capacity. No person shall be liable for civil
23damages or subject to professional discipline based on a claim
		SB3398 Enrolled	- 2 -	LRB104 17550 JRC 30978 b
1of violating a patient's right to confidentiality as a result
2of making a reasonable inquiry as to the availability of a
3patient's family member or health care agent, except for
4willful or wanton misconduct.
5    The surrogate decision makers, as identified by the
6attending physician, are then authorized to make decisions as
7follows: (i) for patients who lack decisional capacity and do
8not have a qualifying condition, medical treatment decisions
9may be made in accordance with subsection (b-5) of Section 20;
10and (ii) for patients who lack decisional capacity and have a
11qualifying condition, medical treatment decisions including
12whether to forgo life-sustaining treatment on behalf of the
13patient may be made without court order or judicial
14involvement in the following order of priority:
15        (1) the patient's guardian of the person;
16        (2) the patient's spouse;
17        (3) any adult son or daughter of the patient;
18        (4) either parent of the patient;
19        (5) any adult brother or sister of the patient;
20        (6) any adult grandchild of the patient;
21        (7) a close friend of the patient;
22        (8) the patient's guardian of the estate;
23        (9) the patient's temporary custodian appointed under
24    subsection (2) of Section 2-10 of the Juvenile Court Act
25    of 1987 if the court has entered an order granting such
26    authority pursuant to subsection (12) of Section 2-10 of
		SB3398 Enrolled	- 3 -	LRB104 17550 JRC 30978 b
1    the Juvenile Court Act of 1987.
2    The health care provider shall have the right to rely on
3any of the above surrogates if the provider believes after
4reasonable inquiry that neither a health care agent under the
5Powers of Attorney for Health Care Law nor a surrogate of
6higher priority is available.
7    Where there are multiple surrogate decision makers at the
8same priority level in the hierarchy, it shall be the
9responsibility of those surrogates to make reasonable efforts
10to reach a consensus as to their decision on behalf of the
11patient regarding the forgoing of life-sustaining treatment.
12If 2 or more surrogates who are in the same category and have
13equal priority indicate to the attending physician that they
14disagree about the health care matter at issue, a majority of
15the available persons in that category (or the parent with
16custodial rights) shall control, unless the minority (or the
17parent without custodial rights) initiates guardianship
18proceedings in accordance with the Probate Act of 1975. No
19health care provider or other person is required to seek
20appointment of a guardian.
21    (b) After a surrogate has been identified, the name,
22address, telephone number, and relationship of that person to
23the patient shall be recorded in the patient's medical record.
24    (c) Any surrogate who becomes unavailable for any reason
25may be replaced by applying the provisions of Section 25 in the
26same manner as for the initial choice of surrogate.
		SB3398 Enrolled	- 4 -	LRB104 17550 JRC 30978 b
1    (d) In the event an individual of a higher priority to an
2identified surrogate becomes available and willing to be the
3surrogate, the individual with higher priority may be
4identified as the surrogate. In the event an individual in a
5higher, a lower, or the same priority level or a health care
6provider seeks to challenge the priority of or the
7life-sustaining treatment decision of the recognized surrogate
8decision maker, the challenging party may initiate
9guardianship proceedings in accordance with the Probate Act of
101975.
11    (e) The surrogate decision maker shall have the same right
12as the patient to receive medical information and medical
13records and to consent to disclosure. Except as otherwise 
14provided by law, a health care provider shall, in response to a 
15written request from an individual who was named as a 
16surrogate or any person, entity, or organization presenting a 
17valid authorization for the release of records signed by the 
18surrogate, release the medical records in accordance with 
19Section 8-2001 of the Code of Civil Procedure.
20    (f) Any surrogate shall have the authority to make
21decisions for the patient until removed by the patient who no
22longer lacks decisional capacity, appointment of a guardian of
23the person, or the patient's death.
24    (g) Upon a determination that a patient lacks decisional 
25capacity and a health care surrogate is identified, a health 
26care facility shall provide written information, which may be 
		SB3398 Enrolled	- 5 -	LRB104 17550 JRC 30978 b
1provided electronically, to the surrogate that states:
2        (1) that a named patient has been determined to lack 
3    decisional capacity by the attending physician, the name 
4    of the attending physician, and the date of such 
5    determination;
6        (2) that the surrogate was designated under this 
7    Section and has the rights and responsibilities prescribed 
8    by this Act, including the right to obtain the patient's 
9    medical records;
10        (3) the identification of the surrogate, including the 
11    surrogate's name, address, and telephone number, the 
12    relationship of that person to the patient, the date the 
13    surrogate was identified, and the name of the health care 
14    facility where the patient was determined to lack 
15    decisional capacity;
16        (4) that a copy of this written information shall be 
17    placed in the patient's medical record and be provided to 
18    any transferring health care provider or health care 
19    facility;
20        (5) that the health care provider relying upon a 
21    surrogate for medical decision making shall ensure the 
22    surrogate form is provided to and is accessible to the 
23    health care provider's health information or medical 
24    records department; and
25        (6) that each health care provider shall be required 
26    to disclose the identity of a patient's health care 
		SB3398 Enrolled	- 6 -	LRB104 17550 JRC 30978 b
1    surrogate to any person qualified under subsection (a) 
2    upon proper documentation of the relationship to the 
3    patient if any qualified person under subsection (a) 
4    requests such information.
5(Source: P.A. 100-959, eff. 1-1-19.)
6    (755 ILCS 40/30)  (from Ch. 110 1/2, par. 851-30)
7    Sec. 30. Reliance on authority of surrogate decision
8maker.
9    (a) Every health care provider and other person (a
10"reliant") shall have the right to rely on any decision or
11direction by the surrogate decision maker (the "surrogate")
12that is not clearly contrary to this Act, to the same extent
13and with the same effect as though the decision or direction
14had been made or given by a patient with decisional capacity.
15Any person dealing with the surrogate may presume in the
16absence of actual knowledge to the contrary that the acts of
17the surrogate conform to the provisions of this Act. A reliant
18will not be protected who has actual knowledge that the
19surrogate is not entitled to act or that any particular action
20or inaction is contrary to the provisions of this Act.
21    (b) A health care provider (a "provider") who relies on
22and carries out a surrogate's directions, including a request 
23from a surrogate for records under subsection (e) of Section 
2425, and who acts with due care and in accordance with this Act
25shall not be subject to any claim based on lack of patient
		SB3398 Enrolled	- 7 -	LRB104 17550 JRC 30978 b
1consent or authorization, including, but not limited to, 
2claims of violation of privacy rights, or to criminal
3prosecution or discipline for unprofessional conduct. Nothing
4in this Act shall be deemed to protect a provider from
5liability for the provider's own negligence in the performance
6of the provider's duties or in carrying out any instructions
7of the surrogate, and nothing in this Act shall be deemed to
8alter the law of negligence as it applies to the acts of any
9surrogate or provider.
10    (c) A surrogate who acts or fails to act with due care and
11in accordance with the provisions of this Act shall not be
12subject to criminal prosecution or any claim based upon lack
13of surrogate authority or failure to act. The surrogate shall
14not be liable merely because the surrogate may benefit from
15the act, has individual or conflicting interests in relation
16to the care and affairs of the patient, or acts in a different
17manner with respect to the patient and the surrogate's own
18care or interests.
19(Source: P.A. 87-749.)
20    Section 99. Effective date. This Act takes effect upon
21becoming law.