Dossier “Forensic ethics”StudiesExpert evidence in fetal alcohol spectrum disorder casesPreuve d’expertise dans les troubles du spectre de l’alcoolisation fœtale
Introduction
Fetal Alcohol Spectrum Disorders (FASDs) are a suite of conditions that have the potential to impact upon both suspected persons’ capacity to participate reliably in police interviews and upon evaluations of criminal responsibility and culpability by expert assessors and criminal courts alike. Therefore, important issues arise in respect of the conduct of expert assessments for forensic purposes of persons who may have FASDs and in respect of the needs of the courts for information about the characteristics of FASDs and their impact upon accused persons so that suitably informed decisions can be made.
This article identifies the clinical evidence for the forensic relevance of FASDs, explores their repercussions for legal practitioners and mental health professionals, and reflects on issues that are emerging for the role of expert witnesses in respect of identification of the sequelae of the harm caused by prenatal exposure to alcohol (PEA). It does so on the basis of the clinical literature and decisions by courts which have been called upon to deal with accused persons who have been diagnosed with FASDs. It argues for the need for increased awareness of the symptomatology of FASDs on the part of forensic mental health assessors, judicial officers and legal representatives. It argues that there is a need for state funding of specialist assessments to assist courts where the incidence of FASDs is particularly high.
Section snippets
Diagnosis of FASDs
FASD is an umbrella term relating to a set of disorders, including Fetal Alcohol Syndrome (FAS), partial Fetal Alcohol Syndrome (pFAS), Alcohol-Related Neurodevelopmental Disorder (ARND) and Alcohol-Related Birth Defects (ARBD). Each disorder results from PEA and is pervasive and life-long [1]. Each can result in different ways and to different extents in learning difficulties; a reduced capacity to remember tasks from day to day; impaired appreciation of the ramifications of conduct; limited
Phenomenology of FASD
The contemporary incidence of FASDs is unknown but it is of significant dimensions [1]. The Public Health Agency of Canada in 2005 estimated that about 1% of Canadians had a FASD. [29] In 2014, its estimate continued to be that FASD occurs at a rate of 1 out of every 100 live births and that its prevalence is between 2% and 5% [30].
Recent studies in a Rocky Mountains region city (1.1–2.5%) [31], a midwestern United States community (2.4-4.4%) [32]; Arizona, Colorado and New York (between 0.3
Forensic relevance of FASDs
The available evidence is compelling that a disproportionately high percentage of persons with FASDs become involved in the criminal justice system – in particular as offenders, prisoners and victims. [59] This means that forensic mental health practitioners, the courts and correctional facilities have significant contact with offenders with FASD. Imprisonment rates of persons with FASD were found to be 19 times greater than those without FASD in a 2011 Canadian study [60]. Prevalence rates of
Interviewee suggestibility: a case example
FASDs have a significant potential to be relevant to the voluntariness of interviews undertaken by persons in authority such as police [63] with those with FASDs and may impact upon the capacity of persons who are suspected of committing offences to understand their right not to answer questions [64]. This may be relevant to the admissibility of the evidence of such admissions but, more broadly, also to the risk of miscarriages of justice.
The circumstances which attended the landmark 2015 Privy
Criminal responsibility and culpability
Based on Canadian data, researchers have estimated that young people with FASD are 19 times more likely to be incarcerated than other young people in a given year [68]. One of the study's authors told a Canadian Parliamentary Committee in 2014 that the prevalence of FASD among incarcerated youth ranged from 11% to 23% [30]. Whether or not this is an accurate figure or can be extrapolated to other jurisdictions, it is apparent that the issue is of significant dimensions for the capacity of
Sentencing of offenders with FASDs
The imposition of a sentence for an offender with FASD presents particular difficulties [86], [87]. A consequence of this is arguably that sentencers should focus upon protection of the community by separation of the offender (by imprisonment) as a means of providing the community with necessary protection and also upon rehabilitation. [88] Thus, factors such as denunciation, punishment and deterrence become less significant. [77] However, a collateral consideration is that while those with
Challenges for Mental Health Assessors, Lawyers and Judicial Officers
While the diagnostic criteria for FASDs remain to be resolved authoritatively and FASDs have not been absorbed unequivocally into the American Psychiatric Association's 2013 DSM-5 [18], [97], it is apparent that FASDs have a significant incidence, in particular in Indigenous populations where there is a high level of maternal consumption of alcohol during pregnancy. They have been seriously under-diagnosed and therefore under-treated [98]. As Australian reports have identified, they can be
Disclosure of interest
The author declares that he has no competing interest.
References (124)
- et al.
Recognition of the fetal alcohol syndrome in early infancy
The Lancet
(1973) - et al.
The international charter on prevention of fetal alcohol spectrum disorder
The Lancet Global Health
(2014) - et al.
Prevalence and characteristics of fetal alcohol syndrome and partial fetal alcohol syndrome in a Rocky Mountain Region city
Drug Alcohol Depend
(2015) - et al.
Fetal alcohol syndrome
- et al.
Cost attributable to fetal alcohol spectrum disorder in the Canadian correctional system
Int J Law Psychiatry
(2015) Defining the behavioral phenotype in children with fetal alcohol spectrum disorders: a review
Neurosci Behav Rev
(2007)- et al.
Fetal alcohol spectrum disorders and offender reentry: a review for criminal justice and mental health professionals
Behav Health
(2014) FASD: the hidden harm
(2012)- et al.
Les enfants de parents alcoholiques : anomalies observées : à propos de 127 cas
Ouest-Med
(1968) - et al.
Fetal alcohol syndrome: experience with 41 patients
JAMA
(1976)
Gin: the much-lamented death of Madam Geneva
The first description of fetal alcohol syndrome by French pediatrician Paul Lemoine
Can J Clin Pharmacol
The value of a FASD diagnosis
J Popul Ther Clin Pharmacol
Foetal alcohol syndrome: diagnosis, epidemiology, prevention and treatment
Fetal alcohol spectrum disorders
Algorithm for evaluation of fetal alcohol syndrome (FAS) and fetal alcohol spectrum disorders (FASDs) within the medical home
The Australian fetal alcohol spectrum disorders action plan 2013–2016, 2012
Study of the subject matter of Bill C-583. An act to amend the criminal code (Fetal alcohol spectrum disorder). Report (May 2015)
Diagnostic issues affecting the epidemiology of fetal alcohol spectrum disorders
J Popul Ther Clin Pharmacol
Screening and referral to identify children at risk for FASD search for new methods 2006-2013
J Popul Ther Clin Pharmacol
Integrating care for individuals with FASD: results from a multi-stakeholder symposium
BMC Health Serv Res
Committee on substance abuse. Fetal alcohol spectrum disorders
Pediatrics
Evolution of the diagnosis of fetal alcohol spectrum disorder from DSM-IV-TR to DSM-5: the justice system in the United States – Time for a paradigm shift
Advancing recognition of fetal alcohol spectrum disorders: the proposed DSM-5 diagnosis of “Neurobehavioral disorder with prenatal alcohol exposure (NS-PAE)
Curr Dev Disord Rep
Fetal alcohol syndrome
Fetal alcohol abuse syndrome
FASD and justice: the ethical case for effective training and knowledge mobilization practices for frontline justice professionals in Canada
The preventable disability
Fetal alcohol spectrum disorders in Australia – The future is prevention
Public Health Res Pract
Foetal alcohol spectrum disorder: the invisible disability
Risk factors for adverse life outcomes in fetal alcohol syndrome and fetal alcohol effects
J Dev Behav Pediatrics
Fetal alcohol spectrum disorders
Eur Child Adolesc Psychiatry
Evaluation of the fetal alcohol spectrum disorder (FASD). Initiative 2008–2009 to 2012–2013
Prevalence and characteristics of fetal alcohol spectrum disorders
Pediatrics
Fetal alcohol syndrome among children aged 7-9 years – Arizona, Colorado and New York
MMWR Morb Mortal Wkly Rep
Prevalence of fetal alcohol syndrome in a South African city with a predominantly black African population
Alcohol Clin Exp Res
FASD prevalence among schoolchildren in Poland
J Appl Res Intellect Disabil
Prevalence of fetal alcohol syndrome in a population-based sample of children living in remote Australia: the Lililwan project
J Paediatr Child Health
Fetal alcohol spectrum disorders: a review of interventions for prevention and management in indigenous communities
Adaptive behaviour in children and adolescents with foetal alcohol spectrum disorders: a comparison with specific learning disability and typical development
Eur Chil Adolesc Psychiatry
National task force on fetal alcohol syndrome and fetal alcohol effect. Fetal alcohol syndrome: guidelines for referral and diagnosis
Risk factors for adverse life outcomes in fetal alcohol syndrome and fetal alcohol effects
Dev Behav Pediatrics
Fetal alcohol syndrome: a guide for families and communities
Exploring the complexity of intellectual disability in fetal alcohol spectrum disorders
Front Pediatrics
Neuropsychiatric implications and long term consequences of fetal alcohol spectrum disorders
Semin Clin Neuropsychiatry
Fetal alcohol effects among North American Indians
Alcohol Res World
Knowledge of fetal alcohol syndrome (FAS) among natives of Northern Manitoba
J Stud Alcohol
Appraisal of the epidemiology of fetal alcohol syndrome among Canadian native peoples
Can J Public Health
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Suggestibility and confabulation among individuals with Fetal Alcohol Spectrum Disorder: A review for criminal justice, forensic mental health, and legal interviewers
2020, International Journal of Law and PsychiatryCitation Excerpt :Increased knowledge of disorders caused by prenatal alcohol exposure, as highlighted by the American Bar Association's (2012) formal resolution advocating for FASD education and awareness, will assist professionals working within criminal justice and legal settings to better mitigate the deficits and avoid false confessions and other erroneous jurisprudence testimonial evidence. Beyond circumventing broad miscarriages of justice, such an understanding may also provide clues as to why individuals with FASD have an increased likelihood to commit crimes with higher rates of recidivism relative to the general population, thus providing information that can lead to improved interventions and treatment outcomes (Brown, Herrick, & Long-McGie, 2014; Flannigan, Pei, Stewart, & Johnson, 2018; Freckelton, 2016). Suggestibility and confabulation are two well known concepts vitally important for criminal justice, forensic mental health, and legal professionals to understand in relation to FASD (Clare & Gudjonsson, 1993; Gudjonsson, 2003; Gudjonsson & Clare, 1995; Gudjonsson & Young, 2010; Smith & Gudjonsson, 1995).
Mental disorder and sentencing: Resolving the definitional problem
2018, Journal of Law and MedicineFetal alcohol spectrum disorders, Expert evidence and the unreliability of admissions during police interviews
2016, Psychiatry, Psychology and Law