By Marika Sboros
Prof Tim Noakes gave scientifically correct information in his tweet, his lawyers have argued. His statement to wean babies onto LCHF (low-carb, high-fat) is correct. Thus it is not even “unconventional”. It is also not dangerous or life-threatening, as the Health Professions Council of SA (HPCSA) claims.
Self-evidently, the HPCSA cannot prosecute Noakes successfully for a scientifically correct statement.
HPCSA lawyers are sticking to their prosecutorial guns. They claim that Noakes gave “unsolicited clinical advice” on a social network. They also claim that he gave the advice to everyone who saw it on Twitter. The advice is unconventional, dangerous and life-threatening, they say. And so is Noakes.
Noakes’ lawyers say that the HPCSA failed to prove all fundamentals of its case against Noakes. Instead of acknowledging failure, the HPCSA simply shifted the goal posts of the charge. It demonstrated a “win-at-all-costs” agenda against Noakes from the outset.
So, what’s really going down here? In the final of a 2-Part review, Foodmed.net looks at the case so far. We also look at what the verdict will say about who really is dangerous. The HPCSA has charged Noakes with “unprofessional conduct” for giving “unconventional advice to a breastfeeding mother on social networks (tweet)” (sic). That was a single tweet in February 2014 saying that good first foods for infant weaning are LCHF.
Johannesburg dietitian Claire Julsing Strydom tweeted her “horror” at his tweet. She then lodged a complaint against Noakes on February 6, 2014. Thus, began the case against him.
Lawyers for both sides gave closing argument on April 4 and 5, 2017. Counsel Dr Ajay Bhoopchand argued for the HPCSA. Senior counsel Michael van der Nest and counsel Dr Ravin “Rocky” Ramdass argued for Noakes.
The HPCSA’s Professional Conduct Committee is the “judge” in this case. Committee Chair is Pretoria advocate Joan Adams. Adams will rule on April 21, 2017.
Van der Nest said that the case arose out of a single tweet addressed to Noakes. Noakes answered it in his capacity as an author and scientist. His answer caused no harm to anyone. It had nothing to do with practising as a medical doctor.
The HPCSA launched the prosecution over a scientific disagreement some health professionals have with Noakes. Their gripe was his views. It was also because the public seemed to be listening to him and not to them.
“The problem was never (his) conduct as a medical doctor,” Van der Nest said.
Ultimately, the prosecution amounts to “impermissible censorship”.
The HPCSA was not even asking for a limit on Noakes’ right to freedom of expression because of any harm. Therefore, it is an attempt of “the worst kind to stifle a constitutionally guaranteed right of freedom of expression”.
The HPCSA should have no sway over what scientists and authors believe and say. That’s no matter the forum they use to express their views, Van der Nest said.
Bhoopchand argued that “no scientist provides public or private advice or information on nutrition and diets”. These functions fall within those of a dietician or a medical practitioner, he said.
Whether he intended to or not, Bhoopchand pointed to a turf war. On the one side are dietitians and doctors who don’t want Noakes giving dietary advice. They also don’t want Noakes giving advice that conflicts with conventional high-carb, low-fat guidelines.
Click here to read: TURF WAR OVER ‘INCONVENIENT TRUTH’?
On the other side are Noakes, doctors and dietitians locally and internationally who say conventional dietary guidelines are wrong. And dangerous.
Expert witnesses for HPCSA referred in their evidence to two books of which Noakes is co-author. These are The Real Meal Revolution and Raising Superheroes. All referred negatively to these books.
The implications of the HPCSA’s “persecution” of Noakes are serious, Van der Nest said. (In his argument heads, he calls the case a “persecution”. He uses the word advisedly. It isn’t a Freudian slip.) Noakes’ instructing attorney, Adam Pike, of Pike Law, agrees. “It’s both a persecution and prosecution,” Pike says.
A guilty verdict would prevent Noakes from exercising his right of freedom of expression fully by writing books. The same applies to other doctors who write books that irritate ADSA, Van der Nest said.
Noakes would also not be able to speak on public platforms such as talks and at conferences or on social media. He could not speak in academic lecture halls at universities.
Dieticians who disagreed with him would only need to “label his views as dangerous or life-threatening”. They could then get the HPCSA to prosecute him for daring to express those views in public.
“And they wouldn’t even have to show a stitch of harm suffered by anyone,” Van der Nest said.
Yet South Africa is a society which protects freedom of scientific expression in its Constitution, Van der Nest argued. It is also not acceptable for “one side of a scientific debate to get a statutory body to prosecute the other”.
Bhoopchand argued that Noakes’ tweet was medical advice, not information. He had a hard time sustaining that without a doctor-patient relationship. However, he changed the goal posts once more, as Van der Nest argued
The essence of the HPCSA’s present contention now is very different, he said. It claims that Noakes “advised the public at large” in the tweet. It also contends that public at large falls within the meaning of “any person”. Therefore, Noakes’ tweet falls within the scope of medical practice, even if the breastfeeding mother was not his patient.
That presented Bhoopchand with the same ethical dilemma in trying to show a doctor-patient relationship.
If Noakes gave medical advice, then it followed that Strydom was equally guilty. So was the second dietitian, Marlene Ellmer, who also tweeted. Both gave medical advice without being registered with the HPCSA as medical doctors. Therefore, both acted outside their scope of practice, Van der Nest said.
Yet the HPCSA acted only against Noakes.
Click here to read: SA HAS DIETARY ‘MISGUIDELINES’
If the HPCSA believes its own arguments, it exposes “hypocrisy and double-standards on its part”, he said.
The HPCSA has now based its case on an “unconventional public health message”. That should trouble Adams and her Committee for a few reasons, Van der Nest said. One is that the HPCSA’s case based on the doctor/patient relationship is “clearly in trouble”.
The HPCSA is also a statutory body. Thus, it should not behave “like a personal litigant with a win-at-all-costs agenda”. In fairness to its member (Noakes), it should “accept the impact of the fundamental difficulty in its case”, he said.
The HPCSA claimed that Noakes breached specific regulations on professional conduct in giving medical advice to the public at large on a social network.
Bhoopchand conceded that the HPCSA had no regulations governing doctors’ conduct on social media. However, he claimed that the regulations were “wide enough” to allow for interpretation on social media.
Van der Nest said that the HPCSA had clearly misunderstood and misinterpreted a “very basic textual reading” of the regulations. Noakes could not be found guilty of breaching non-existent guidelines.
Bhoopchand also argued that the Committee should dismiss much of the evidence of Noakes and his experts as irrelevant. He said that the charge was “narrow” and confined to infant nutrition only.
Thus, he claimed that much of UK obesity researcher Dr Zoë Harcombe’s evidence was irrelevant. He said that the same applied to US science journalist Nina Teicholz’s evidence.
He claimed that Teicholz’s evidence related to the US Dietary guidelines only. Therefore, it was irrelevant to South Africa’s paediatric guidelines. These were based on The World Health Organisation (WHO) guidelines, he said.
Bhoopchand also claimed that Teicholz had “revised” her evidence that the WHO had copied the US guidelines. I could find no evidence for that in the transcript. Teicholz also confirmed that she did not revise her evidence.
He made frequent claims in his heads of argument, for which I could find no proof in the transcripts. One was that Noakes had changed his view on dietary carbohydrate while giving his evidence. Noakes confirms that he did not. He changed his mind during his Damascene moment in late 2010.
Van der Nest and Ramdass easily countered the argument that the case against Noakes is on infant nutrition only.
The HPCSA Preliminary Inquiry Committee (PIC) based its decision to charge Noakes on a secret report which was not on infant nutrition. It commissioned the report from North-West University nutrition professor Hester “Estee” Vorster. Vorster later became an expert witness against Noakes.
Vorster also attached a press release on the Stellenbosch (Naudé) Review to her report. That review is on adult nutrition only.
In it, she deals with the LCHF diet at an adult level. In this context, she also labeled Noakes and his views as “extremely controversial”.
The PIC also relied on the views of members of the University of Cape Town Faculty of Health Sciences. All were strongly adverse to Noakes. Their views also had nothing to do with infant weaning.
This shows that the case was always about the HPCSA challenging the LCHF diet that Noakes promoted widely in public, Van der Nest said.
The PIC also and “inexplicably” never asked Noakes to comment on Vorster’s report. That shows that the HPCSA’s entire process has been “riddled with unfairness and injustice”.
The HPCSA breached the provisions of the Health Professions Act under which it was set up, he said. Read with its own regulations, it also breached the fundamental requirement of fairness. The HPCSA had breached the right of audi alteram partem. That is the right to be heard and to respond to allegations adverse to you prior to a decision to prosecute you.
In further particulars of the charge, the HPCSA also made it clear to Noakes that it was not on infant nutrition only.
Ramdass went carefully through all the evidence Noakes and his experts provided to show relevance. He also said that it was “untenable” bordering on “absurd” for the HPCSA to claim that Noakes does not have experience and knowledge of infant weaning and nutrition to give information.
Click here to read: TEICHOLZ: HOW LOW-FAT DIETS CAN KILL YOU
Bhoopchand conceded that the HPCSA had failed to show evidence of any harm from Noakes’ tweet. However, he now argued that the HPCSA only had to show “potential” for harm. He also argued that the HPCSA had shown that potential.
Van der Nest argued that after three years, “and ample opportunity” the HPCSA had failed to produce a “shred of evidence of any harm”.
Noakes and his experts showed that there was no harm from LCHF. On the contrary, they gave evidence for benefits.
Bhoopchand dismissed defence claims of vested interests and conflicts of interest behind the prosecution. He described these as “wishy-washy conspiracy theories”.
However, Noakes and his experts gave evidence on significant conflicts of interest and vested interests against LCHF. They also showed that efforts to prevent chronic disease diametrically oppose commercial interests of food industries. Chief among those are the sugar, processed foods and soft drinks industries. Coca-Cola and its proxy, the International Life Sciences Institute (ILSI) feature largely in the latter, as US investigative journalist Russ Greene showed.
Click here to read: COULD CARDIOLOGISTS BE AT HEART OF THIS TRIAL?
Interestingly, Bhoopchand focused his argument more on dietary carbohydrates, not fats. That pointed to a seismic, “schizophrenic” shift, as Van der Nest described earlier shifts.
He said that the HPCSA had proved the charge against Noakes “on a balance of probability”. Thus, Adams should rule that he is guilty.
The HPCSA made very serious allegations, Van der Nest said. Predictably, this led to a “very serious trial defence” by Noakes. The balance of the evidence “overwhelmingly” establishes that weaning onto LCHF is not incorrect. Nor is it dangerous or life-threatening. Indeed, the very opposite is the case.
Equally, his evidence shows that the LCHF diet is none of those things. Van der Nest argued an “inescapable conclusion” from Noakes’ evidence. His tweet is neither unconventional nor dangerous.
The HPCSA is driven to say the evidence is irrelevant for good reason. “It cannot answer the evidence,” Van der Nest said.
The “ultimate irony” is that dieticians “cried out for evidence” regarding LCHF. When Noakes provided it, Strydom was absent throughout. And the HPCSA tries to exclude and ignore it.
“What kind of body charges a person for being dangerous and incorrect then tries to exclude the evidence showing he is not?”
Noakes is scientifically correct, Van der Nest argued. The evidence shows that “conventional” dietary advice is wrong and dangerous. Therefore, the Committee should have “no hesitation” in dismissing the charge.
All that remains now is to see which argument holds more sway with the “jury” on April 21, 2017.