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Fetal Alcohol Spectrum Disorder and the justice system

Young offenders serving custodial sentences are there for many reasons. Youth custody is concerned with keeping young people and the community safe, while providing rehabilitation to enable young offenders to learn from their mistakes and recognise what they did was wrong. But what if they can’t learn, what if they have memory loss, or a learning disability or brain damage?

A new study into Fetal Alcohol Spectrum Disorder (FASD) by researchers at the Telethon Kids Institute and published in BMJOpen is an Australian first and one of the most comprehensive global studies of a youth detainee population.

The study indicates that the prevalence of FASD in youth detention in Western Australia is 36 per cent of detainees, and the presence of severe neurodevelopmental impairment is as high as 89 per cent; rates, as noted by the researchers to be the highest in the world.

For most of these young people this was the first time these impairments were identified, despite signs and indicators throughout their lives pointing to FASD. The researchers also made a convincing argument that these staggeringly-high figures were a conservative estimate.

This research tells us we are spending an extraordinary amount of money punishing people for disability, specifically a neurodisability, and expecting changes that they are not capable of making. We don’t expect people with mobility challenges to run faster – because we can see that they can’t. FASD is often hidden and we can’t ‘see’ it. This was the case for 74 per cent of the young people diagnosed in this study. They had no facial or other visible features characteristic of a neurodisability and therefore present as neurotypical, often with verbal skills which create the appearance of age-appropriate cognition.

With this study we have evidence-based numbers indicating that the prohibitive costs of youth detention could be reduced with less expensive early interventions. The adage an ounce of prevention is worth a pound of cure has never been truer. Early diagnosis of FASD can lead to more positive outcomes across the lifespan when children and adults are recognised as needing care and support, not punishment and blame. The financial costs of custody far exceed the costs of early screening, identification and case management. The emotional costs of crime and the justice system for caregivers, families and the community are even higher.

Comprehensive diagnosis is a right, not a privilege, and diagnosis will inform and identify strengths to be worked on, weaknesses to consider – all contributing to better outcomes for the individual and society. The complexity of the developing human brain during pregnancy is such that each person living with FASD is affected in different ways. There are patterns of identifiable similarity but as with many disabilities, individualised approaches are needed.

Our justice system, through good intentions, does more harm than good if FASD is not recognised. The justice system is designed around principles of giving offenders the opportunity to reform – understand their offences, learn from their mistakes and become contributors to society. Therefore, people living with FASD in the absence of intensive support, will always risk being offenders because their brain damage makes them impulsive, unable to learn from mistakes, unable to remember mistakes and unable to predict consequences. Research has pointed this out since the early 1990’s. If you can’t learn from your mistakes, you are condemned to repeat them. Parents and carers know this and instead of being listened to are often advised that their parenting skills are the cause of the behaviours. As many wise parents and carers of people with FASD know, one of the earliest signs of the disorder is often observing a young child making the same mistake daily, despite the negative consequence.

This study provides evidence of the highest prevalence of neurodisability in a justice setting ever documented and therefore points to systemic failures across support systems. A detention centre is the very last place that diagnosis should be undertaken because all these young people will have long histories across a range of social and welfare departments. The WA Department of Justice is to be commended for supporting this important study and enabling this valuable research.

Each Australian State is responsible for its young detainees and whole-of-government initiatives are required to identify young people at-risk of FASD and provide early interventions across multiple portfolios. Currently, nearly all Australian FASD initiatives are being led by the Commonwealth Department of Health. Investment and support needs to be much broader than this. The results of this WA study are relevant to every Australian state and territory government and community. Each state-based portfolio with a role in child protection, family support, health, police services, custodial facilities, disability and education has responsibility for FASD. Governments and community support services need to be FASD-informed and to invest in workforce development.

Additionally, policy and practice responses targeted at prevention initiatives are needed to reduce the number of alcohol exposed pregnancies in Australia. Many pregnancies in Australia are exposed to alcohol, often during the time after conception and prior to pregnancy identification.

The path from juvenile detention to adult prison is well mapped. Therefore, what does this study tell us about the 40,000 adults in Australian prisons (as at first quarter 2017)? When it comes to FASD these alarming figures should be used to highlight the urgent need in Australia for governments, support services and community to take responsibility and learn from past mistakes instead of expecting people with a neurodevelopmental disability to learn from their mistakes.

Louise Gray

Louise Gray is the Executive Officer of the National Organisation for Fetal Alcohol Spectrum Disorders (NOFASD) Australia. For over 20 years NOFASD Australia has been dedicated to supporting parents and carers of those living with FASD through a Helpline, promoting prevention initiatives and community-wide information about FASD.


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