A LAWYER’S BRIEF ON FETAL ALCOHOL SPECTRUM DISORDERS (FASD)

DAVID BOULDING, LAWYER
PORT COQUITLAM, BRITISH COLUMBIA
dmboulding@shaw.ca

 

Alcohol in the womb is a solvent and acts on the baby’s developing brain like paint stripper acts on layers of old paint on furniture: it dissolves brain cells, bubbles them away. Thus, brain functions are missing.

1. FASD IS A PERMANENT BRAIN-BASED BIRTH DEFECT

    • Jan Lutke advises: distinguish between non-compliance and non-competence. There is a difference, and it is brain-based.

2. FASD IS A MULTI-SECTOR PROBLEM

    • It is a school, police, social, legal, medical, family, community, and national problem.
    • It is a delusion to think one agency can solve this problem.

3. DO NOT RE-INVENT THE WHEEL

4. GO PAST JUDGMENT AND UNDERSTAND THE REASONS WHY PREGNANT WOMEN DRINK ALCOHOL

    • This is difficult and requires a heartfelt, clear-minded knowledge of family violence, the history of close relationships, poverty, lack of education, addiction, and an understanding of how people cope with daily difficulty.
    • FASD is not restricted to poor marginalized Canadians. Rich stockbrokers have wives who binge-drink while pregnant. Young, educated professional women binge-drink almost as a rite of passage, often not knowing they are pregnant.

5. THERE IS GOOD NEWS: IT’S CALLED THE “EXTERNAL BRAIN”

    • The “External Brain” as intended by Dr. Sterling Clarren means appropriate supervision 24/7. Design appropriate structures to create opportunities for the FASD person to be successful. All the available drugs and therapy, all the jail time, all the best intentions found in court orders, will not generate new brain cells. These offenders will be the same every time they come into the courtroom. They are not going to change. It is our responsibility to create success for persons with FASD. They need help from a walking, talking committee of knowledgeable helpers.
    • The “External Brain”, as a legal concept, is our duty of care. It is our duty to accommodate FASD persons because we are all to be equal before the law.
    • Diane Malbin provides four practical suggestions:
      1. Match the brain before you to the task you set.
      2. Identify your assumptions.
      3. Adjust your expectations and stretch your definition of success.
      4. Change their environment.
    • These suggestions are easy to say aloud but difficult to implement for four reasons:
      • Each of us has a little voice inside that says: they should not get away with this unacceptable behaviour.
      • Each of us shares a social sense that an individual could do better if the individual would just try harder.
      • If we really knew how the brain worked, we would punish differently. We would design our “teaching and corrections industries” differently. Our knowledge of the human brain is in its infancy. There is much we do not know. Many of our brain-based assumptions in the criminal system are clearly wrong. The McNaughten Rules (1853) work for you and I, not FASD persons.
      • Change is not easily accepted or even wanted, especially in rigid systems like the legal or educational systems.

Most importantly: caregivers and others charged with dealing with persons with FASD will experience near total exhaustion very quickly—this includes police, teachers, lawyers, social workers, and judges. Guard against dying inside yourself, the same way a long-distance runner guards against fading too soon. There are training tips and they involve physical, mental, emotional, and spiritual fitness—take care of yourself. Like the monotonous warnings on airlines, put on your air mask before helping others. You are useless if dead, or unable to do your appointed task.

 

RESOURCES:

    • Fetal Alcohol Spectrum Disorder: Trying Differently Rather Than Harder, Diane Malbin.
    • Fetal Alcohol Syndrome and the Criminal Justice System: Understanding the Offender with FAS (DVD and VHS), Dr. Julianne Conry. www.asantecentre.org
    • The Challenge of Fetal Alcohol Syndrome: Overcoming Secondary Disabilities, Ann Streissguth and Jonathan Kanter (eds.)
    • Fetal Alcohol Syndrome: A Guide for Families and Communities, Ann Streissguth
    • Beautiful Smiles, Gentle Spirits. Fetal Alcohol Spectrum Disorder: A Misunderstood Problem, Margaret Michaud and Sacha Michaud (eds.)
    • Web Resources by Dr. Kathy Sulik, Ph.D., University of North Carolina (Embryologist).

     

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