Proposed Changes to the Illinois Health Care Right of Conscience Act

May 13, 2015
SmithAmundsen Health Care Alert

Senate Bill 1564, currently before the Illinois House of Representatives, amends the Illinois Health Care Right of Conscience Act to require, despite conscience-based objections, that health care providers have a written policy and procedure on providing patients with information on all legally available medical treatment; to have written protocols on where the treatment, even if objectionable, can be obtained; and establishes that employers are not prevented from requiring health care personnel comply with access to legal medical care and information.

The Illinois Health Care Right of Conscience Act 745 ILCS 70/1-14 currently allows both public and private health care providers with a conscience-based objection not to participate in, assist in, counsel, suggest, recommend or refer patients for those particular procedures or services. It also protects against hiring discrimination based on an employee’s conscience-based objection(s) to particular health care treatment.

SB1564 seeks to amend the current Act by placing conditions on when a physician, health care personnel or health care facility can practice conscience-based objections without being subject to civil or criminal liability for impairment to a patient’s health. For a copy of the text of SB1564, click here.

Moving forward, this amended law may affect labor and employment policies as nothing in SB1564 prevents a health care facility from “requiring that physicians or health care personnel working in the facility comply with access to care and information protocols.” Health care facilities may find themselves conflicted about how to balance employing workers with conscience-based objections and requiring workers to comply with access care protocols that those workers object to. It is important to note that the current bill’s definition of “health care facility” is broad enough to include crises pregnancy centers, faith based obstetric practices, and other faith based health care facilities.

Should SB1564 be passed, both public and private health care providers with conscience-based objections to certain services or procedures would be required to give “material information” to each patient for all legally available alternative medical treatments available to them. One potential example of this would be an OB/GYN treating a pregnant patient carrying a child with a genetic impairment that has a low probability of resulting in a live birth. SB1564 would require the doctor, regardless of his or her conscience based objections, to tell the patient about the option of continuing the pregnancy or inducing labor to end the pregnancy, along with the risks and benefits of both options in a "timely manner,” or the doctor must refer the patient to another willing to provide the requested service, or advise the patient that the service will not be provided and refer and/or transfer as appropriate. If these conditions enumerated in SB1564 are not met, and the patient alleges health impairment resulted from the provider not timely providing information about all the legal treatment options, then the provider would not have an affirmative defense pursuant to the Right of Conscience Act. Attorneys may question if “impairing the patients’ health” applies to minutes of treatment or a day or more delay in treatment. Experts may have different opinions as to whether one treatment causes more health impairment than another treatment.

Already approved by the state senate, SB1564 will go into effect on January 1, 2016 if passed by the Illinois House of Representatives. Health care facilities without written protocols as to providing patients with information on all legally available medical treatments will need to have those protocols prepared to be in compliance by the effective date.

If SB1564 does not pass the House of Representatives, then case law will most likely continue to allow health care providers to operate under their sincerely held beliefs. See Morr-Fitz Inc. v Quinn, 2012 Ill. App. (4th) 110398 (case upholding right of pharmacy owners not to stock and disperse morning after pills and medications against their sincerely held right of conscience beliefs).