SB3398: CIV PRO-TENANTS IN COMMON

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