DO NOT RESUSCITATE ORDERS (DNR) and the IL HEALTH CARE SURROGATE ACT

DO NOT RESUSCITATE ORDERS (DNR) and the IL HEALTH CARE SURROGATE ACT




The IL Health Care Surrogate Act may be read in its entirety at:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2111&ChapterID=60

The following are excerpts from this act:

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.

(Source: P.A. 90‑246, eff. 1‑1‑98)



Sec. 15. Applicability. This Act applies to patients who lack decisional capacity or who have a qualifying condition



"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.



"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.



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.



"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.

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 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.






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.






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.






755 ILCS 40/45) (from Ch. 110 1/2, par. 851‑45)


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.


(Source: P.A. 87‑749.)






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.



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.

(Source: P.A. 87‑749.)



Editor's Note: Again, we can only ask WHY do some private guardians in the Cook County Probate Court administer DNR orders that are NOT in compliance with this law. WHY???