Deputizing Family: Loved Ones as a Regulatory Tool in the “Drug War” and Beyond

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as fully explored. These include the potential for interference with underlying family relationships, the invisibility of care worker burdens, and the inequality of both the burdens and the benefits of care work. This Article shows how these difficult-to-quantify social consequences of deputizing family can and should be incorporated into the evaluation of laws that use loved ones as a tool of public health. It develops a normative framework for doing so and demonstrates the usefulness of this framework by applying it to the question of how and when patients may permit family members to access and authorize disclosures of protected health information. That analysis reveals the desirability of an “active choice” approach to such deputization; as compared to an “isolation by default” approach, active choice holds the promise to better and more fairly encourage, recognize, support, facilitate, and perhaps even compensate the uniquely valuable care work by loved ones that many who suffer from substance use disorder rely upon as a crucial support in their battle with illness. Specific administrative changes to effectuate that conclusion are recommended. Finally, the broader promise and pitfalls of the Article’s “deputization” frame for understanding certain forms of care work are also discussed