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Meyer Capel, A Professional Corporation 306 West Church Street Champaign, Illinois 61820 217-352-1800 main 217-819-4384 direct 217-352-1083 fax [email protected] www.meyercapel.com I. Significant Cases KAREN ANN QUINLAN In Re: Karen Ann Quinlan, 70 NJ 10, 355 A.2d 647. 79 A.L.R.3d 205 (1976): The New Jersey Supreme Court NANCY CRUZAN Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L.Ed. 2d 224 (1990) TERRY SCHIAVO In re Guardianship of Terri Schiavo, 780 So. 2d 176 (Fla. Dist. Ct. App. 2d Dist., 2001) 2 The Illinois Experience RUDY LINARES DOROTHY LONGEWAY In re Estate of Longeway, 133 Ill. 2d 33, 139 Ill. Dec. 780, 549 N.E.2d 292 (1989) SIDNEY GREENSPAN In re Estate of Greenspan, 137 Ill. 2d 1, 146 Ill. Dec. 860, 668 N.E.ed 1194 (1990) 3 Withholding/Withdrawing Life-Sustaining Treatment Generally, it is the right of a competent adult to refuse unwanted medical treatment, even if the decision will result in the individual’s death. This right emanates from common law principles of individual autonomy and selfdetermination that underlie the consensual nature of the physician-patient relationship. 4 II. Illinois Advance Directives Under Illinois law, a competent adult may execute the following Advance Directives: 1. 2. 3. 4. Living Will; Power of Attorney for Health Care; Mental Health Treatment Preference Declaration; and, Do-Not-Resuscitate Orders. In the absence of an Advance Directive, health care decisions for an incompetent individual may be made only by a courtappointed guardian or a health care surrogate under the Health Care Surrogate Act. 755 ILCS 40/1 et seq. 5 A. Living Will Act (755 ILCS 35/1 et seq.) Legislative Purpose The legislature finds that persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have death delaying procedures withheld or withdrawn in instances of a terminal condition. In order that the rights of patients may be respected even after they are no longer able to participate actively in decisions about themselves, the legislature hereby declares that the laws of this State shall recognize the right of a person to make a written declaration instructing his or her physician to withhold or withdraw death delaying procedures in the event of a terminal condition. (755 ILCS 35/1) 6 A. Living Will Act (755 ILCS 35/1 et seq.) Legislative Purpose (Continued) In re C.A., App. 1 Dist.1992, 177 Ill.Dec. 797,236 Ill.App.3d 594, 607, appeal denied 183 Ill.Dec. 20, 148 Ill.2d 642, 610 N.E.2d 1264 provides an analysis of the Legislative Purpose behind the Living Will Act: “’Living will’” allows person to execute document that expresses his or her desire not to be kept alive through artificial or extraordinary means if in future he or she suffers terminal condition.” 7 A. Living Will Act (755 ILCS 35/1 et seq.) continued Salient Definitions “Death delaying procedure” as defined in the Living Will Act means any medical procedure or intervention which, when applied to a qualified patient, in the judgment of the attending physician would serve only to postpone the moment of death. In appropriate circumstances, such procedures include, but are not limited to, assisted ventilation, artificial kidney treatments, intravenous feeding or medication, blood transfusions, tube feeding and other procedures of greater or lesser magnitude that serve only to delay death. However, this Act does not affect the responsibility of the attending physician or other health care provider to provide treatment for a patient's comfort care or alleviation of pain. Nutrition and hydration shall not be withdrawn or withheld from a qualified patient if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition. (755 ILCS 35/2(d)) 8 A. Living Will Act (755 ILCS 35/1 et seq.) continued “Qualified patient” as defined in the Living Will Act means a patient who has executed a declaration in accordance with this Act and who has been diagnosed and verified in writing to be afflicted with a terminal condition by his or her attending physician who has personally examined the patient. A qualified patient has the right to make decisions regarding death delaying procedures as long as he or she is able to do so. (755 ILCS 35/2(g)) In re Estate of Greenspan, 137 Ill.2d 1, 15-16 (1990), discusses death-delaying procedures considered under the Living Will Act. 9 A. Living Will Act (755 ILCS 35/1 et seq.) continued “Terminal condition” as defined in the Living Will Act means an incurable and irreversible condition which is such that death is imminent and the application of death delaying procedures serves only to prolong the dying process. (755 ILCS 35/2(f)) In Re Estate of Longeway, 133 Ill.2d 33, 47 (1989) articulates and applies the “terminal condition” standard. 10 B. Powers of Attorney for Health Care Law (“PAHCL”)(755 ILCS 45/4-1 et seq.) Legislative Purpose The General Assembly recognizes the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to decline medical treatment or to direct that it be withdrawn, even if death ensues. The right of the individual to decide about personal care overrides the obligation of the physician and other health care providers to render care or to preserve life and health. 11 B. Powers of Attorney for Health Care Law (“PAHCL”)(755 ILCS 45/4-1 et seq.) continued Legislative Purpose continued However, if the individual becomes disabled, her or his right to control treatment may be denied unless the individual, as principal, can delegate the decision making power to a trusted agent and be sure that the agent’s power to make personal and health care decisions for the principal will be effective to the same extent as though made by the principal. 12 B. Powers of Attorney for Health Care Law (“PAHCL”)(755 ILCS 45/4-1 et seq.) continued Salient Definitions “Health care” as defined in the PAHCL means any care, treatment, service or procedure to maintain, diagnose, treat or provide for the patient's physical or mental health or personal care. (755 ILCS 45/4-4 (b)) “Health Care Agent” – “Means an individual at least 18 years old designated by the principal to make health care decisions of any type, including, but not limited to, anatomical gift, autopsy, or disposition of remains for and on behalf of the individual. A health care agent is a personal representative under state and federal law. The health care agent has the authority of a personal representative under both state and federal law unless restricted specifically by the health care agency. 755 ILCS 45/4-4(e-5) (Section added by P.A. 98-1113, § 5, eff. Jan. 1, 2015). 13 B. Powers of Attorney for Health Care Law (“PAHCL”)(755 ILCS 45/4-1 et seq.) continued Salient Definitions continued Health Care Agent can admit the principal to an assistedliving facility. Fiala v. Bickford Senior Living Group, LLC, App. 2 Dist.2015, 392 Ill.Dec. 80, 32 N.E.3d 80. “Health care provider” or “provider” as defined in the PAHCL means the attending physician and any other person administering health care to the patient at the time of reference who is licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or the practice of a profession, including any person employed by or acting for any such authorized person. (755 ILCS 45/4-4 (d)) 14 B. Powers of Attorney for Health Care Law (“PAHCL”)(755 ILCS 45/4-1 et seq.) continued Salient Definitions continued P.A. 98-1113, § 5, eff. Jan. 1, 2015 amended Section (d) to include the term “health care professional.” The section now reads: “’Health care provider’, ‘health care professional’, or ‘provider’ means the attending physician and any other person administering health care to the patient at the time of reference who is licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or the practice of a profession, including any person employed by or acting for any such authorized person.” 15 C. Mental Health Treatment Preference Declaration Act (755 ILCS 43/1 et seq.) The designated mental health care decisions concern three types of treatment: (1) electroconvulsive treatment; (2) psychotropic medication; and (3) short-term admission to a mental health facility (up to 17 days). 755 ILCS 43/5(7). 16 D. Do Not Resuscitate Orders/Advance Directive Forms (755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c)) Sec. 65. Do-not-resuscitate Advance Directive forms. The Department of Public Health Uniform DNR Advance Directive or a copy of that Advance Directive shall be honored. (Section 3.57 of the Act) If the Department Uniform DNR Advance Directive is reproduced, it is recommended that brightly colored paper be used. Systems shall also have a policy in place concerning recognition of other DNR Advance Directives. The information required on the Department Uniform DNR Advance Directive includes, but is not limited to, the following items: 1) Name of the patient, 2)Name and signature of attending physician, 3) Effective date, 17 D. Do Not Resuscitate Orders/Advance Directive Forms (755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c)) continued Sec. 65. Do-not-resuscitate Advance Directive forms. continued 4) The words “Do Not Resuscitate”, 5) Evidence of consent: (a) signature of patient; or (b) signature of legal guardian; or (c) signature of durable power of attorney for health care agent; or (d) signature of surrogate decision-maker. 18 D. Do Not Resuscitate Orders/Advance Directive Forms (755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c)) continued Revocation of a written DNR Advance Directive shall be made only in one or more of the following ways: 1) The Advance Directive is physically destroyed by the physician who signed the Advance Directive or by the person who gave written consent to the Advance Directive; or 2) The Advance Directive is verbally rescinded by the physician who signed the Advance Directive or by the person who gave written consent to the Advance Directive and the word “VOID” is written in large letters across the front of the Advance Directive, and the Advance Directive is signed and dated by the physician who signed the Advance Directive or by the person who gave written consent to the Advance Directive. 19 D. Do Not Resuscitate Orders/Advance Directive Forms (755 ILCS 40/65; 77 Ill. Adm. Code 515.380(a), (b) and (c)) continued Sec. 65. Do-not-resuscitate Advance Directive forms. continued 755 ILCS 40/65 has amended the Health Care Surrogate Act to remove reference to DNR forms and has instead included language referencing POLST forms. POLST forms are Physician Orders for Life-Sustaining Treatment. 20 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) Legislative 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 lifesustaining 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. In re Larry B., 394 Ill.App.3d 470 (App. Ct. 5th Dist. 2009), articulates that a competent person has the statutory right to refuse all types of medical treatment. 21 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Legislative Findings continued 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. (755 ILCS 40/5(a)) 22 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued The HCSA Private Decision Making Process The private decision-making process established under the Health Care Surrogate Act consists of the following steps: 1. the patient must be found to lack decisional capacity; and, 2. reasonable inquiry must be made about any existing Advance Directives; and, 3. a surrogate decision-maker must be identified; and, 4. the medical record must be properly documented. 23 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Physician Documentation In addition, for a surrogate to have authority to make lifesustaining treatment decisions, two physicians must determine the patient suffers from a qualifying condition and lacks decision-making capacity and document these determinations in the patient’s medical record. 24 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Lack of Decisional Capacity “Decisional capacity” as defined in the HCSA 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. 25 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Reasonable Inquiry A “reasonable inquiry” as defined by the HCSA includes, but is not limited to, identifying a member of the patient’s family or other health care agent by examining the patient’s personal effects or medical records. If a family member or other health care agent is identified, an attempt to contact that person by telephone must be made within 24 hours after a determination by the provider that the patient lacks decisional capacity. Such reasonable inquiry is not a violation of the patient confidentiality. 26 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Reasonable Inquiry as to Availability of Rank Ordered Surrogates The potential surrogates are listed in the following order: 1. 2. 3. 4. 5. 6. 7. 8. The patient’s guardian of the person; The patient’s spouse; Any adult son or daughter of the patient; Either parent of the patient; Any adult brother or sister of the patient; Any adult grandchild of the patient; A close friend of the patient; The patient’s guardian of the estate; 27 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Reasonable Inquiry as to Availability of Rank Ordered Surrogates continued The attending physician or other health care provider must reasonably inquire about the availability of a surrogate under categories (1) through (4) prior to choosing any surrogate in categories (5) through (8). Once identified, the highest-priority person appointed as a surrogate may make medical treatment decisions for the patient. 28 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Reasonable Inquiry as to Availability of Rank Ordered Surrogates continued “Surrogate decision maker” as defined by the HCSA 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. 29 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally A qualifying condition is defined to mean the existence of one or more of the following: (1) a terminal condition; (2) permanent unconsciousness; or (3) an incurable or irreversible condition, as determined by the attending physician and another physician who has seen the patient. 30 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally continued 1. Terminal Condition A “terminal condition” is defined as “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”. This definition is quite similar to the definition that appears in the Living Will Act. 31 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally continued 1. Terminal Condition continued “Imminent” (as in “death is imminent”) as defined in the HCSA 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. 32 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally continued 1. Terminal Condition continued “Life-sustaining treatment” as defined in the HCSA 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. 33 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally continued 2. Permanent Unconsciousness The second qualifying condition is “permanent unconsciousness.” This term is defined as “a condition that, to a high degree of medical certainty, (1) will last permanently, without improvement; (2) in which thought, sensation, purposeful action, social interaction, and awareness or self and environment are absent; and (3) for which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit”. 34 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally continued 3. Incurable or Irreversible Condition The third qualifying condition is an “incurable or irreversible condition.” This term is defined as an illness or injury: 1. For which there is no reasonable prospect of cure or recovery; and, 2. That ultimately will cause the patient’s death even if life-sustaining treatment is initiated or continued; and, 35 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Qualifying Conditions Generally continued 3. Incurable or Irreversible Condition continued 3. That imposes severe pain or otherwise imposes an inhumane burden on the patient; and, 4. For which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit. An incurable or irreversible condition cannot be described by referring to any one medical condition. Moreover, all four of the above listed conditions must be met for an illness to be viewed as incurable or irreversible. 36 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued “Forgo life-sustaining treatment” as defined in the HCSA 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. 37 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued The “Substituted Judgment” Standard The Act requires the surrogate to make medical treatment and life-sustaining treatment decisions for adult patients and conform as closely as possible to the decisions the patient would have made. This “substituted judgment” standard requires that the surrogate utilize the following evidence when making these decisions: 1. The patient’s personal, philosophical, religious, and moral beliefs. 38 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued The “Substituted Judgment” Standard continued 2. The patient’s ethical values relative to the purpose of life, sickness, medical procedures, suffering, and death. 3. How the patient would have weighed the burdens and benefits of initiating or continuing treatment against the burdens and benefits of that treatment. 4. Any unrevoked Living Will, Power of Attorney for Health Care, Declaration for Mental Health Treatment which is either technically deficient or not applicable to the patient’s condition. 39 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued If Substituted Judgment is Unknowable, then “Best Interests” Standard Applied When the patient’s wishes cannot be determined (or the patient is a minor), the surrogate must make decisions believed to be in the “best interest of the patient”. This must be done by weighing the burdens or benefits of 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 do. 40 E. The Illinois Health Care Surrogate Act (the “HCSA”) (755 ILCS 40/1 et seq.) continued Health Care Providers Reliance on Surrogate Conscience of Health Care Provider Neonates Life Insurance Not Suicide or Murder The HCSA and Organ Donation 41 INDEX OF APPENDICES Illinois Department of Public Health Living Will ……………….……………………………… Appendix 1-A Illinois Department of Public Health Statutory Short Form Power of Attorney For Health Care ……….……………………………… Appendix 2-A Illinois Department of Public Health Declaration For Mental Health Treatment …… Appendix 3-A Illinois Department of Public Health Uniform Do-Not-Resuscitate (DNR) Advance Directive …………….……………………… Appendix 4-A 42