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Wayne Martin: FASD awareness and testing critical steps to end injustice

By Wayne Martin, The West, 11 September 2023

A justice system worthy of its name must ensure that courts imposing sentences on people found guilty of an offence have access to all relevant facts and circumstances – aggravating and mitigating, relating to the offence, the offender and any victims of the offence.

Usually, the relevant facts will be established by evidence, but sometimes they can be obscure and difficult to detect.

The symptoms of fetal alcohol spectrum disorder (FASD) – a neurological condition which people suffer through no fault of their own – often pass unnoticed by police, prosecutors or defence lawyers, who are of course not trained clinicians. This means that the condition doesn’t come to the attention of our courts as often as it should, resulting in great injustice to people who are especially vulnerable.

We know that the behavioural symptoms of FASD – which affect the ability to think, learn, focus attention, and control behaviour and emotions – increase the chances that those who suffer from it will collide with the criminal justice system. A recent study (2022) found that people with FASD were more likely to be charged with reckless driving, breach of bail or community orders, property damage, and disorderly behaviour.

At Banksia Hill, the state’s only youth detention centre, over one-third of young people were diagnosed with the condition. This is the highest rate of FASD ever diagnosed anywhere in the world. Of course, FASD is not an excuse for crime, although it does lower moral culpability because people with the condition cannot properly comprehend the consequences of their actions. Significantly, FASD also means that people are unlikely to understand the penalties imposed on them, or to respond to those penalties by modifying their offending behaviour, without therapeutic intervention.

Despite the determined research efforts of the Telethon Kids Institute in the past decade, and strong advocacy from NOFASD Australia, there are still alarmingly low testing and assessment rates across WA. In addition, there is a lack of appropriate support and services for those diagnosed with the condition, which is life-long and incurable.  We know that there are too many people, often children and young people, coming before our courts who are not being screened for FASD even though the likely signs of the condition are apparent in the reports relating to them.

Access to screening and assessment, which can be ordered by the court, is a fundamental first step in ensuring people who live with FASD do not become lost in the revolving doors to our courts and prisons. But this will only lead to better community outcomes when there are appropriate supports and services available to the courts as alternatives to prison or detention, or a pointless fine.

This month’s FASD Awareness Day comes at a time when the state government is working to overhaul the failing youth detention system with a new therapeutic operating philosophy and service model. This is an opportunity to improve our awareness of this condition and how those who live with it should be treated within our criminal justice system.

By the time a person with FASD reaches our courts, state agencies will likely have missed multiple opportunities for critical intervention. The criminal justice system is the drip tray into which people fall when other systems have failed them. Systems including child protection, education and healthcare each have a role to play in comprehensive developmental assessment, including assessing for FASD where it may be indicated.

Improved FASD awareness across systems will lead to increased likelihood of earlier assessment and diagnosis. This, in turn, leads to opportunities for early intervention and support that can significantly reduce the likelihood that a person with FASD will come into contact with the justice system in the first place, or that they will experience injustice if they do.

Without diagnosis, there is no impetus for management and treatment plans, nor access to suitable protective facilities outside of prison and detention that can reduce the risk of further offending and enhance community protection.

As a recent report released by the Justice Reform Initiative made clear, there is an urgent need for Western Australia to invest more in evidence-based programs and services run by the community sector (especially First Nations-led organisations) that work to reduce incarceration and decrease recidivism by addressing the social drivers of contact with the criminal justice system.

If all relevant agencies in our state are more aware of the likelihood of FASD and of the importance of assessing for it at the earliest possible opportunity, we can improve our chances to deliver these critical interventions and catch vulnerable people before they fall through the cracks.

To build safer communities, we need to move away from 'managing’ people with FASD in prisons and instead build access to specialist supports and programs in the community.  Building awareness of FASD is a critical first step in the process of ensuring that people born with a significant disability are diverted from the justice system. 

Wayne Martin is the former Chief Justice of WA, a patron of the Justice Reform Initiative and an ambassador for NOFASD (the National Organisation for Fetal Alcohol Spectrum Disorder).

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