Greater recognition of fetal alcohol spectrum disorder (FASD) within the court system in Marlborough

Youth Court Judge Tony Fitzgerald

Youth Court Judge Tony Fitzgerald

Judges and lawyers are changing the way they communicate to help mentally impaired defendants navigate the justice system. 

Youth Court Judge Tony Fitzgerald said awareness of neurological disabilities, including fetal alcohol spectrum disorder, was increasing within the justice system. 

Two Blenheim grandparents caring for grandchildren with fetal alcohol spectrum disorder came forward in September calling for greater recognition of the condition, which is not recognised as a disability by the Ministry of Health.

Paraparaumu grandmother Eleanor Bensemann also sought help for her grandson Daniel Bensemann, 19, who lived on the streets in Blenheim after being released from secure care. 


* Grandmother wants help for Blenheim grandson

More support needed for 'neglected disability'

Fitzgerald said the number of people with fetal alcohol spectrum disorder appearing before the courts was not changing, but it was being identified more. 

"It's only been in recent years that this awareness has developed. 

"As soon as you start assessing for it and looking for it, it's there." 

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Each Youth Court in New Zealand had a forensic service that screened for and assessed mental illness and impairment, Fitzgerald said. 

Studies in Canada found about 25 per cent of the population in the country's youth prisons had fetal alcohol spectrum disorder. 

Although there was no comparable research on the prevalence of the disorder in the New Zealand justice system, Fitzgerald said the experts he had talked to believed New Zealand rates would be similar to those overseas. 

During the past 10 years, the majority of defendants who raised an argument about fitness to stand trial did not meet the criteria for mental illness or intellectual disability despite having a significant mental impairment. 

As awareness of neurological disabilities increased in the justice system, court officials had changed the way they were talking with defendants to make sure that they understood what was going on in court.

There was a duty on every lawyer and judge to communicate with people appearing before the court in a manner and language that they could understand, Fitzgerald said. 

People with fetal alcohol spectrum disorder were at greater risk of behaving in a way that would bring them in to the criminal justice system, he said. 

In the past people with fetal alcohol spectrum disorder often went undiagnosed or were misdiagnosed.

"We haven't been quite making the connection with recidivist offending, which was just viewed as bad behaviour.

"The explanation historically was that they were just bad people who were determined to keep offending." 

It was important to identify the underlying reason that people were committing crimes, Fitzgerald said.

"You could take the approach, 'why bother?' and keep punishing people, but then you'll have high numbers of people continuing to reoffend because you're failing to address what is causing it in the first place." 


- Alcohol during pregnancy can cause birth defects and brain damage in unborn babies. 

- 1 in 100 live births are thought to be affected by pre-natal alcohol exposure. 

- While heavy exposure early in pregnancy can result in visible birth defects, most disorders are neurological, and more difficult to diagnose. 

- Not all babies who are exposed to alcohol will be affected to the same degree. 

- Physical effects of alcohol exposure before birth can include: facial malformations, growth retardation, hearing and eyesight impairment and skeletal defects.

- Neurological problems linked to alcohol exposure before birth may include: sensory problems, impulsivity, memory difficulties as well as challenges with problem solving, thinking critically and learning from experience. 

Source: Alcohol Healthwatch

 - The Marlborough Express


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