To access government support available for people with disability, and to have your disability taken into account in the criminal justice system, generally you need to meet two criteria:
- you need to have a type of disability that falls within the relevant definition in the law or policy, and
- you need to have certain impairments as a result of that disability.
It is the first criterion that requires reform.
As noted at the start of this paper, law and policy as it affects people with a cognitive disability developed largely through awareness of intellectual disability. As a result, people with other forms of neurological impairment that do not meet the criteria for intellectual disability, including people with FASD, are often ineligible for the support available to people diagnosed with intellectual disability. This is the case even where a person with FASD has a greater need for assistance arising from their disability. A person with FASD may also fall outside diversionary and other criminal laws which reflect the lesser culpability of a person with cognitive disability despite their disability having a greater impact on their offending behaviour than the impact of intellectual disability.