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.
DIAGNOSING FASD IN THE ERA OF DSM-5: GOOD NEWS FOR THE FORENSIC CONTEXT 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, 2001). 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 ) 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 others. 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 period. 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”  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 References 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 COMMENT - FROM, DENYING TO COMPETING “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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