FROM DENYING TO COMPETING - the impact of the DSM 5 on FASD A - diagnosis, awareness and the law by bstanley31


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Natalie Novick Brown,PhD, SOTP
Psychologist/Evaluator, Depart of Corrections, Div of Developmental Disabilities, Depart
of Social & Health Services (Washington State), Parenting Evaluator, U of Washington
Depart of Psychiatry and Behavioral Sciences
(Ret.) Judge Anthony Wartnik(Retired) Seattle, Washington-
Expert FASD and the Law. Juvenile Court, Family Law Court, Dean Emeritus for the
Washington Judicial College, Chair Judicial College Board of Trustees, and
Washington State Supreme Court’s Judicial Education Committee. Governor's
Advisory Panel on FAS/FAE
Susan D. Rich MD, MPH, CAPSGW
Maryland Representative Board Certified Child/Adolescent & Adult Psychiatrist
Diplomate, American Board of Psychiatry & Neurology

With the publication of the new Diagnostic and Statistical Manual, Fifth Edition (DSM-5),
in the United States, the neurodevelopmental effects of fetal alcohol spectrum disorders
 (FASD) are featured for the first time in the DSM’s history as a mental health
condition. Diagnosed as “Neurodevelopmental Disorder associated with Prenatal
 Alcohol Exposure (ND-PAE),” the condition is included under “Specified Other
 Neurodevelopmental Disorder” (Code 315.8) with six other disorders (i.e., Intellectual
Disability, Communication Disorders, Autism Spectrum Disorders, Attention-
Deficit/Hyperactivity Disorder, Specific Learning Disorder, Motor Disorders) in the
Neurodevelopmental Disorder section of the DSM-5. This is very good news because
now, for the first time in its 40-year history as a known medical condition, the brain-
based mental health sequellae of FASD can be diagnosed by mental health
professionals. While multidisciplinary diagnosis involving an array of medical, allied
health, and mental health specialists remains critical for diagnosing and treating children
and adolescents in the clinical setting and the “gold standard” for diagnosing adults in
high-stakes forensic settings, the DSM-5 now guides diagnosis of ND-PAE by individual
psychiatrists or psychologists.
In the previous nosological system, FAS was a medical diagnosis of exclusion in
dysmorphic patients. The number of patients who were identified with any FASD was
quite limited due to costly diagnostic systems (CDC, HHS, NOFAS, 2005) and skewed
toward the typical facial features. Developmental pediatricians, geneticists, and pediatric
dysmorphologists ruled out all genetic causes of abnormal faces and
neurodevelopmental issues before diagnosing a child with FAS or partial FAS (CDC,
HHS, NOFAS, 2005). Unfortunately, few children actually made it into the offices of
these specialist pediatricians, particularly those from rural, inner city, and small town
communities. Even fewer non-dysmorphic individuals came to the attention of such
subspecialists. The complex facial morphometric protocols led to family
physicians’ and pediatricians’ reluctance to diagnose these conditions, even with a
clear history of PAE, obvious developmental delays, and/or overt intellectual disability.
  Since “Alcohol-related Neurodevelopmental Disorder (ARND)” had no diagnostic
code, most cases of FASD were not diagnosed at all. While pediatric specialists
diagnose FAS (in the presence of dysmorphic features, it is psychiatrists who have
typically treated the wide range of related neurodevelopmental and psychiatric sequellae,
often without appreciating the correlation with prenatal alcohol exposure. Training about
FASD is scarce in medical schools and residency programs, and typically non-existent in
graduate psychology programs. Most psychiatrists are ill-equipped to construct the
complex neurodevelopmental formulations needed to help these patients achieve their
optimal level of functioning, and most psychologists have been uniformed about FASD
altogether. In turn, treating clinicians in outpatient settings, hospitals, long- term
treatment centers, and the justice systems are challenged by the underlying
neurochemical, neurophysiologic, and neuroanatomic alterations associated with
alcohol-induced prenatal brain injury.
Since the brain-based neurodevelopmental issues (and not the facial features) respond
to treatment, we and others believe that a shift toward recognition of ND-PAE will shore
up the proverbial cracks in the academic, mental health, and justice systems. Hopefully,
the diagnosis will improve coordinated systems of care, comprehensive disability
services, and caregiving environments to prevent children ending up in juvenile court
(Streissguth, et al., 1991, Steinhausen, et al., 1993, Streissguth et al., 1996) and cycling
through adult corrections. We in the field know all too well that the “FASD
transition to adulthood” often leads to homelessness, prostitution, substance
abuse, unemployment, and crime (Streissguth & O”Malley, 2000, Streissguth,
et al., 2004). “Failure to thrive” in society is the typical outcome for
individuals with FASD due to their adaptive functioning deficits, which are well beyond
their predicted performance based on IQ.

What is ND-PAE?
The DSM-5 notes that ND-PAE involves a “range of developmental disabilities
following exposure to alcohol in utero” and includes both individuals with ARND as
 well as those with FAS and partial FAS (pFAS). Neither ARND nor ND-PAE
requires the presence of physical abnormalities (i.e., facial features, growth deficit). The
following criteria are listed in DSM-5 (Section 3) as the neurodevelopmental
manifestations of ND-PAE:
The DSM-5 notes the following with respect to physical (i.e., medical) symptoms:
 “The current diagnostic guidelines allow ND-PAE to be diagnosed both in the absence
and in the presence of the physical effects of prenatal alcohol exposure (e.g., facial
dysmorphology required for a diagnosis of fetal alcohol syndrome).” Eliminating strict
 criteria for facial abnormalities in ND-PAE diagnosis is consistent with strong
evidence in multiple studies that FAS is not associated with worse outcomes compared
to ARND (e.g., Streissguth et al., 1996). In fact, the reverse is true. Researchers tend to
attribute worse life course outcomes in ARND to the absence of physical features, which
reduces the odds of diagnosis and treatment.

ND-PAE: Implications for Forensic Practice
Since the mid-1990s, we have known that FASD (i.e., ND-PAE) is associated with a high
risk of criminal behavior, with first offenses typically committed during the juvenile years
before brain development is complete even under normal circumstances. Moreover,
youths with ND-PAE have triple-jeopardy: they are born with permanent brain damage,
their brains develop abnormally in childhood (Treit et al., 2013), and it is not until the
mid-20s that brain development is complete. The prefrontal cortex is the last area of the
brain to develop. This area of the brain handles decision- making, judgment, and impulse
control – all of which are implicated in most criminal conduct. These areas are highly
sensitive to prenatal alcohol exposure, with binge episodes in the first weeks of
pregnancy as damaging as more moderate use throughout pregnancy (Meier & West,
Another important change in DSM-5 involves recognition of how FASD/ND-PAE and
ID/MR are connected. Under DSM-IV TR, ID/MR (Intellectual Disability/Mental
Retardation) required a full scale IQ of 70 or below. The U.S. Supreme Court in Atkins v.
Virginia (536 U.S. 304 [2002]) adopted the DSM-IV TR diagnostic criteria for ID/MR but
based its decision prohibiting execution of defendants convicted of capital crimes upon
the presence of neurodevelopmental/behavioral, cognitive and executive functioning
 deficits. The Court’s theory was that people with such deficits are not as
accountable for their criminal behavior as non-disabled individuals, and because of this,
are not capable of learning from consequences for their behavior and thus are not able
to be deterred from future criminal behavior by the death penalty. Unfortunately, the
Court left establishing ID/MR definitions that conformed to its opinion to the states. Too
date, two states have eliminated the full scale IQ threshold. Consequently, due to lack of
conforming definitions, the same defendant can be put to death in some states but not in
The DSM-5 diagnostic criteria for ID/MR eliminates the 70 or below IQ score threshold.
The criteria now are:
A. Deficits in intellectual functions, such as reasoning, problem
solving, planning, abstract thinking, judgment, academic learning and learning from
experience, confirmed by both clinical assessment and individualized standardized
intelligence testing.
B. Deficits in adaptive functioning that result in failure to meet
developmental and socio-cultural standards for personal independence and social
responsibility. Without ongoing support, the adaptive deficits limit functioning in one or
more activities of daily life, such as communication, social participation, and independent
living, across multiple environments, such as home, school work, and community.
C. Onset of intellectual and adaptive deficits during the developmental
The significance of these criteria is that the very evidence supporting a diagnosis of ND-
PAE constitutes Criteria A and B of an ID/MR diagnosis.
Competency to stand trial, waive constitutional rights, and enter a plea have historically
been problematic. Most persons with FASD have full scale IQ scores above 70, but
prosecutors, defense counsel, and judges generally do not grasp that the deficits
associated with FASD result in lack of understanding of cause and effect, actions and
consequences, and appreciation that the behavior constitutes a crime. Due to DSM-5,
there likely will be a significant increase in the prevalence of people with FASD also
being found to have ID/MR. This will depend on states changing the law to conform to
the new DSM-5 definition, state courts adopting the change in contravention of existing
state law and, ultimately, whether the U.S. Supreme Court adopts the new definition.
Regarding competency, death penalty and mitigation, a fundamental condition upon
which criminal responsibility reposes is that individuals have the capacity to reason rignt
from wrong and to choose right from wrong. This perspective provides the moral
justification for imposing criminal responsibility and punishment on offenders (R v. Ruzic,
153 C.C.C. 1, Supreme Court of Canada. The treatment of criminal offenders as rational,
autonomous, choosing agents underlies this principle of criminal law (G Ferguson, “A
 Critique of Proposals to Reform Insanity Defense” [1989] 14 Queen’s L.J. at
p. 140). Unfortunately, people afflicted with FASD are usually not rational,
autonomous, choosing agents, able to reason right from wrong, and able to choose right
from wrong.
Some courts have concluded that since the Supreme Court ruled that FASD is a
mitigating factor in capital cases, but has not addressed it in non-capital offenses,
 mitigation doesn’t apply to the latter. This response is illogical since it follows that if
FASD constitutes mitigation in crimes of murder, it should apply equally to all criminal
prosecutions. The most forceful argument for excluding defendants with FASD from the
death penalty, for recognizing that special attention is needed when evaluating
 accountability for one’s behavior, and for treating FASD in all cases as a
mitigating factor where its deficits are connected to the criminal behavior is set out in the
case of Dillbeck v. State, 643 S.2d 1027 (Florida Supreme Court, 1994): “Just as the
 harmful effects of alcohol on the mature brain of an adult imbiber is a matter
 within the common understanding, so to is the detrimental effect of this intoxicant on
the delicate, evolving brain of a fetus held in utero . . . we can envision few
 things more certainly beyond one’s control than the drinking habits of a parent
 prior to one’s birth.”
With the DSM-5 now recognizing that FASD is both a medical condition and a complex
mental disorder and that full scale IQ is diagnostically irrelevant in terms of degree of
impairment, attention now turns to the legal community. Will state courts begin to
appreciate the message in Atkins that a brain-based condition like FASD carries with it
every bit as much disability as ID/MR and treat afflicted individuals differently in the
justice system? The place to start is educating psychiatrists and psychologists who can
now make the diagnosis, and educating the legal community so that they appreciate the
implications of the diagnosis. It is our hope that these things will happen now that DSM-5
has opened the door to a modern era of FASD diagnosis

Maier, S.E. & West, J.R. (2001). Drinking patterns and alcohol-related birth defects.
Alcohol Research & Health, 25, 168-174.
Streissguth, A. P., Barr, H. M., Kogan, J., & Bookstein, F. L. (1996). Understanding the
occurrence of secondary disabilities in clients with fetal alcohol syndrome (FAS) and
fetal alcohol effects (FAE). Final report to the Centers for Disease Control and
Prevention. Seattle, WA: University of Washington School of Medicine.
Treit, S., Lebel, C., Baugh, L., Rasmussen, A. G & Beaulieu, C. (2013). Longitudinal MRI
reveals altered trajectory of brain development during children and adolescence in fetal
alcohol spectrum disorders. Journal of Neuroscience, 33, 10098-10109.

Fetal Alcohol Forum [ U.K ] – December 2013, Issue 10


“All truth passes through three stages. First, it is ridiculed. Second, it is violently
opposed. Third, it is accepted as being self – evident.”
- Arthur Schopenhauer

This is a very good article on the impact of the new DSM 5 diagnosis – “Other Specified
Neurodevelopmental Disorder- PAE related" [ code 315.8 ] on FASD and the law.
However the DSM 5 also includes – “"Intellectual Disability" [ mild, moderate, severe and
profound - codes 317,318.0,318.1and 318.2 ].
For the pediatricians and psychiatrists who are reluctant to pursue the history of PAE and the
diagnosis of FASD, and there are many of them in my experience, the latter diagnoses will be
used to the exclusion of FASD and the new code 315.8.

Barry Stanley – Dec. 2013

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