Expert evidence in fetal alcohol spectrum disorder cases

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Summary Fetal Alcohol Spectrum Disorder (FASD) is an umbrella term relating to a set of disorders, including Fetal Alcohol Syndrome (FAS), partial Fetal Alcohol Syndrome (pFAS), Alcohol Related Developmental Disorder (ARND) and Alcohol Related Birth Defects (ARBD). Each disorder is pervasive and life-long, resulting from prenatal exposure to alcohol (PEA). While the incidence of FASDs remains debatable, it may well be in the region of 1% of the population in countries such as Canada, New Zealand and Australia. They have been disproportionately identified in persons from an indigenous background in a number of countries. In addition, FASDs are present in significant numbers amongst persons who are charged with criminal offences and who are sentenced to imprisonment, especially young offenders. Understandably, as FASDs continue to be attended by a level of diagnostic uncertainty, they have been significantly under-diagnosed. They can easily be mistaken for other disorders, especially in the context of comorbidities. However, their relevance in the forensic context in terms of reduced culpability for criminal offending and problematic capacity to respond to interviewing by persons in authority, such as police, is significant but in many instances subtle. In addition, the potential for FASDs to be misinterpreted on the basis of persons with FASDs appearing ‘normal’ is significant. Thus, mental health professionals who assess persons charged with criminal offenders have an important role in identifying FASD symptomatology and, where necessary, referring such offenders for specialist assessment. Those who provide FASD assessments to the courts need not only to educate judicial officers about the phenomenology of FASDs but about how in the particular scenario a FASD may have forensic relevance, in the sense of having played a role in the offender's criminal offending and in relation to how the offender is likely to fare in a custodial environment. As there are different forms of FASDs and as their symptomatology varies significantly in nature and severity, it is incumbent upon assessors to provide offender-specific assistance to courts, sometimes incorporating counter-intuitive information. Judicial officers are increasingly receiving submissions about FASDs in many countries, especially in respect of offenders from First Nations. The quality of such evidence has been variable and there have been occasions when courts have not received the assistance they have required. Some have become experts in the area; others have little knowledge about the issues. However, international case law, based upon expert assessments from psychiatrists and psychologists, has evolved substantially since 2000. There is now a significant body of sentencing law, in particular, upon which advocates can draw and judicial officers can rely, based upon expert opinions provided by mental health assessors, when imposing sentences upon offenders with FASDs. This article reviews important and illustrative examples of such law from Canada, England, New Zealand and Australia. It argues that this corpus of legal authority now provides constructive guidance for FASD cases, and that it should be utilized to enhance forensic FASD assessments and judicial decision-making about offenders with FASDs.