NOAKES: ELEPHANT IN THE ROOM PROVES HE’S INNOCENT?

By Marika Sboros

Prof Tim Noakes is guilty of unprofessional conduct on “a balance of probability”, advocate Ajay Bhoopchand argued yesterday. He also accused Noakes of using the Health Professions Council of SA’s (HPCSA) hearing to “settle personal scores”.

Johannesburg senior counsel Michael Van der Nest argued that Noakes is not guilty of unprofessional conduct.  The only ones using the hearing to settle scores are dietitians opposed to Noakes, he said.

The dietitian who lodged the complaint against Noakes did so because he wouldn’t agree with her on diet, Van der Nest said. And when she and her colleagues couldn’t persuade him to agree with her, she decided, on a whim, to ask the HPCSA to prosecute him.

The tweet regarding LCHF for infants presented a perfect pretext for a complaint against Noakes.

Somehow, the dietitian “miraculously” succeeded in getting the HPCSA to do her bidding, Van der Nest said. Thus, the case against Noakes has become an “unprecedented prosecution” of a scientist for his views on nutrition.

The HPCSA has charged Noakes with unprofessional conduct for giving “unconventional advice” to a breastfeeding mother on a social network. That was a single tweet in February 2014, saying that good first foods for infant weaning are LCHF (low-carb, high-fat).

Johannesburg dietitian Claire Julsing Strydom memorably tweeted that she was “HORRIFIED(!!!)” at what Noakes had said and lodged a complaint with the HPCSA. She was president of the Association for Dietetics in SA (ADSA) at the time.

Bhoopchand completed his closing argument at the resumption of the HPCSA hearing against Noakes in Cape Town yesterday. Van der Nest will continue with advocate Dr Ravin “Rocky” Ramdass today. After that, Bhoopchand has an opportunity to reply.

The Professional Conduct Committee, the “jury” in this case, will adjourn to consider its verdict on Thursday and Friday. Committee Chair, Pretoria advocate Joan Adams, will rule on April 21, 2017.

Van der Nest said that the case against Noakes is “schizophrenic”.  From the start, the HPCSA has created confusion about who the complainant is in its case and why it is prosecuting Noakes at all.

Strydom makes it clear in her letter of complaint that she is the complainant. She makes multiple references to herself in the first person. She makes no reference to “we” or to ADSA. In her evidence at the hearing, she also makes it clear that she is the complainant.

Yet the HPCSA has persisted in its contention that ADSA is the complainant, with no timeline or explanation for the change.

Bhoopchand referred to “an elephant in the room” in this case. It was the absence of South African guidelines on doctors’ conduct on social media. However, he argued that the regulations under the Health Professions Act and HPCSA guidelines in the booklets “clearly bring activity on social media into the ambit of what is deemed to be (doctors’) conduct”.

Van der Nest said that by admitting to the “elephant in the room”, Bhoopchand had “ended the HPCSA’s case”.

The HPCSA has no norms and standards of conduct for medical professionals on social media, Van der Nest said. Thus, it cannot accuse Noakes of being unprofessional for breaching non-existent rules.

Advocate Ajay Bhoopchand

The HPCSA has its case “back to front”. It must learn from this case, Van der Nest said, and not use Noakes as a guinea pig. It must write up norms and standards and distribute these to health professionals. If there is a contravention thereafter, that’s the time to prosecute.

“That’s the right way to go about it,” he said.

You would also expect a complaint of this nature to have a victim and for that victim to be a patient, Van der Nest said. However, the breastfeeding mother, Pippa Leenstra, did not complain. The HPCSA did not call her as a witness or subpoena her on any possible harm.

The “most objectionable part” of the case against Noakes is that the HPCSA has prosecuted him in an “absolute vacuum of harm”. Three years after the tweet, the HPCSA has not provided a shred of evidence to show harm, either to adults or children, from an LCHF diet, Van der Nest said.

Ordinarily, a charge of unprofessional conduct means disgraceful, unworthy, or improper conduct by a medical practitioner. It is also conduct that goes against norms and standards of the profession. Yet the HPCSA claimed that it doesn’t have to prove harm from the “unconventional advice” to prove unprofessional conduct.

“How can it be disgraceful to give unconventional advice that isn’t harmful?” Van der Nest asked.

And more to the point: “Do we really prosecute people for being unconventional, without doing any harm?” Van der Nest asked.

The HPCSA wishes to persuade the Professional Conduct Committee that it does not have to show harm. That’s because they know that in this case, there is no harm, Van der Nest said.

Click here to read: REAL BEEF DIETITIANS HAVE WITH HIM!

“Now we are at the stage where we must deal with (a charge of) unconventional advice that doesn’t have to be harmful and there is no evidence of harm,” he said.

Interestingly, Bhoopchand did not refer to a doctor-patient relationship in arguing for Noakes’ guilt.  Instead, he made much of Noakes’ reply to Strydom’s complaint to the HPCSA. He said that Noakes failed to say in it that he was tweeting in his capacity as a scientist, as he had testified.

Bhoopchand also said that Noakes had failed to deny acting as a doctor in the tweet, in his reply. Curiously, he argued that Noakes said nothing about not being a doctor in his plea explanation. Van der Nest pointed out that plea explanations were part of criminal cases, not HPCSA hearings. He also pointed out that the HPCSA’s own regulations made no provision for plea explanations.

Van der Nest argued that the doctor-patient relationship was crucial to the HPCSA’s case against Noakes. And when Noakes asked the HPCSA for particulars of the charge against him, the “doctor-patient relationship was at the top”.

As well, the HPCSA had called its last witness, Stellenbosch University psychiatry professor Willie Pienaar, specifically on the doctor-patient relationship. It has also led evidence from all three other HPCSA expert witnesses on the doctor-patient relationship.

The next extraordinary feature of this case, Van der Nest said, came after calling Pienaar. The HPCSA now said that the onus was on the defence to show that a doctor-patient relationship was necessary to prove the charge against Noakes. This was not a tenable position. The raising of a defence does not reverse the onus and excuse the prosecution from having to prove elements that support its case.

Van der Nest said the HPCSA ignored a doctor-patient relationship because it could not prove one. And whenever it failed to prove an element of the charge, it simply “changed tack”.

The doctor-patient relationship highlighted the HPCSA’s unfair treatment of Noakes. Van der Nest’s argued that if there was a doctor-patient relationship between Noakes and Leenstra, then Strydom and another dietitian who tweeted to Leenstra, Marlene Ellmer, were equally guilty of giving “medical advice” to Leenstra over twitter.

They would have acted within a doctor’s “scope of practice” without registering as doctors with the HPCSA. Moreover, Strydom and Elmer would have been guilty of supersession. That’s the legal term for taking over another health professional’s patient without permission.

That raised the question of unfair treatment and why the HPCSA had chosen to prosecute only Noakes.

Bhoopchand spent much of his argument claiming that Noakes’ tweet to Leenstra, the breastfeeding mother, was unsolicited medical “advice”.  He said that Noakes’ own evidence was that there is no globally accepted definition of LCHF. Bhoopchand also said that LCHF is not “globally known as a complementary feeding diet”.

Therefore, the advice on LCHF was unconventional.  It was also dangerous as it had the potential for harm.

To support his contention that the advice was unconventional, Bhoopchand said that it made no sense to recommend a diet “related to losing weight” for an infant. He also said that a “reasonable person” could have interpreted Noakes’ tweet to mean advising a “dangerous” ketogenic diet.

Bhoopchand also said that the case really is a “Banting for Babies Trial”. He argued that it was about dietary and nutrition recommendations for the neonate and infants only. The evidence “shows conclusively” that this relates to the first two years of an infant’s life. He also said that this period includes the recommendation of exclusive breastfeeding.

Thus, the Committee should dismiss as irrelevant any evidence that Noakes and his witnesses led on adult nutrition.

Bhoopchand also said that the 1977 US dietary guidelines were “totally irrelevant” to South Africa’s paediatric guidelines that are based on the World Health Organisation (WHO) recommendations. He dismissed the evidence of Dr Zoe Harcombe and Nina Teicholz as “entirely irrelevant to infant and neonatal nutrition”.

He had also earlier acknowledged Noakes as “an extraordinary” person. However, he went on to accuse Noakes of being a “flippant”, “cynical” and an “untruthful and evasive” witness.

Van der Nest said that Noakes was not untruthful or evasive in his evidence. On the contrary, stacked up against the HPCSA’s conduct against him, it was clear who was dishonest and evasive. It was also clear that the case was not about infant nutrition at all.

The HPCSA’s Preliminary Inquiry Committee was busy “marshalling forces” against Noakes and gathering evidence, which it kept secret from him. It commissioned a secret report from North-West University nutrition professor Hester “Estee” Vorster as evidence against Noakes. The Committee used Vorster’s report to decide to charge Noakes without giving him an opportunity to respond to beforehand.

Vorster’s report included an attachment referring to a University of Stellenbosch study that had nothing to do with infant nutrition. It was only about adult nutrition. The Committee also considered an open letter to the press attacking Noakes’ views, which his colleagues at the University of Cape Town wrote. That letter also said nothing about infant nutrition.

Van der Nest said it was clear that the case was about the science for LCHF for all ages.