Barriers to Implementing Holistic, Community-Based Treatment for Offenders with Fetal Alcohol Conditions

by Mitten, H. Rae

The thesis contends that holistic, community-based treatment is preferable to carceral options for offenders with fetal alcohol conditions, presents emerging support for this contention, identifies barriers to the implementation of community-based treatment, and culminates with analyses of ways of influencing policy reform or of legally mandating non-carceral treatment options. Potential avenues that will be examined include:

•   Charter of Rights and Freedoms, s. 15, including an analysis from Eldridge, Law, and Auton, based on the duty to accommodate disabilities;

•   Constitution Act, 1982, s. 35 and its recognition and affirmation of such relevant treaty right as the alcohol ban, particularly as the ban operates as a contextual factor in a s. 15 Charter analysis as applied to affected treaty beneficiaries; and

•   Articles 23, 24 and 40 of the Convention on the Rights of the Child, and Article 12(1) of the International Covenant on Economic, Social and Cultural Rights, particularly as they influence the s. 1 analysis under the Charter.

A remedy mandating a positive state obligation to provide community-based treatment likely would require favourable cost-benefit analyses, as well as evidence of effectiveness of the treatment (the latter to be studied in a subsequent interdisciplinary Ph.D. program using qualitative research techniques). The implications of a finding of disability and mental disorder related to fetal alcohol conditions will be examined. The present research topic is at the interface of health and justice, and indeed is multidisciplinary in nature as fetal alcohol influences every aspect of affected individuals' lives. Moreover, the problem is situated in its historical, ideological, global, and trans-disciplinary context.