By Marika Sboros

South African scientist Prof Tim Noakes could know by the end of March if his regulatory body will fail in its last-ditch attempt to find him guilty.

And this time round, global medical and scientific communities are watching.

A group of independent doctors in the US launched a petition on February 19. The US-based Nutrition Coalition has supported it. The petition calls on the Health Professions Council of South Africa (HPCSA) to stop prosecuting Noakes. Before a week was up, more than 31,000 of the world’s leading doctors, scientists, dietitians and others had signed.

One signatory is Harvard physician and nutrition professor Walter Willett. Willett is no fan of low-carb, high-fat (LCHF) diets. However, Willet signals his support for the right of scientists right to express opinions that differ from his.

The HPCSA has appealed its Professional Conduct Committee’s comprehensive not-guilty verdict for Noakes in April 2017. The charge was unprofessional conduct for a single tweet in 2014. In it, he said that good first foods for infant weaning are LCHF.

Noakes’s lawyers have filed a cross-appeal going for costs. Their grounds are that the HPCSA has acted in bad faith throughout. They say that the HPCSA is a statutory body and therefore the law offers it no protection against “bad behaviour”.

The appeal was held in Pretoria from February 21 to 23 before a committee that the HPCSA appointed. The Committee Chair, advocate Justice Mogotsi, reserved his ruling till “some time before the end of March”.

For the defence, advocate Michael van der Nest (SC) covered the law and ethics as they applied to the case against Noakes. Advocate Dr Ravin “Rocky” Ramdass looked at the law and scientific claims made against him.

From the HPCSA’s side, it was Groundhog Day. Advocate, Ajay Bhoopchand gave nothing new in grounds for appeal. Instead, he claimed that the Professional Conduct Committee had got it all wrong.

The committee erred on “matter of law and facts”, he said. Thus, the HPCSA believed that an Appeal Committee would come to a “different decision”.

HPCSA Appeal Grounds

In his appeal grounds, Bhoopchand repeated claims that Noakes:

  • Had a doctor-patient relationship with the breast-feeding mother on Twitter;
  • Acted as a medical doctor, not a scientist;
  • Gave medical advice without consulting the mother or her infant;
  • Gave advice that was “unconventional” because it was not evidence-based and went against the country’s dietary guidelines;

Advocate Ajay Bhoopchand

The problem for Bhoopchand was the same as last time round. The HPCSA failed to prove all those pillars. And with that, he veered straight back into the Kafkaesque territory the HPCSA had carved out for itself.

Bhoopchand claimed that the onus was not on the HPCSA to prove a doctor-patient relationship. He said that the Professional Conduct Committee had made a “spectacular error” in finding that the HPCSA had onus.

His reasoning, as he later gave it, was that a doctor-patient relationship was immaterial or irrelevant. It was also irrelevant whether Noakes gave advice or information. And he claimed that the absence of a patient or victim, in this case, was no proof that Noakes did not act as a medical doctor.

He also, and somewhat bizarrely, claimed that if the defence had only made it clear from the outset that there was no doctor-patient relationship, the case would have terminated at that point.

Bhoopchand’s focus on a doctor-patient relationship led Appeal Chair advocate Justice Mogotsi to ask why it was in the charge. After all, Mogotsi noted, breastfeeding mother, (Pippa Leenstra, the putative patient in this case) had not lodged a complaint. Nor had she testified.

Bhoopchand said that the Appeal Committee had to consider the charge against Noakes from “a whole different perspective”.  That was from the viewpoint of the complainant, Johannesburg dietitian Claire Julsing Strydom.

Keto Fears Resurge

Strydom was president of the Association for Dietetics in South Africa (ADSA) when she lodged the complaint against Noakes that set off the trial against him. She was concerned that the public could have interpreted Noakes’s tweet to mean a ketogenic diet. She described it as “unprecedented” advice to put a healthy baby on a ketogenic diet.

Ketogenic diets loomed large in the HPCSA’s case against Noakes. Yet, as the defence noted, the charge against him says nothing about advising a ketogenic diet.

Ramdass highlighted extensive evidence of ignorance on the part of Strydom and all the HPCSA’s experts about ketosis. All appeared to conflate it with ketoacidosis. Ketosis is a perfectly natural bodily state. Ketoacidosis is rare, potentially fatal and seen mostly in type 1 diabetics.

All also showed ignorance about the vital role that ketones play for infant brain development and growth.

Noakes’s legal team: (l to r) Instructing attorney Adam Pike of Pike Law, advocate Dr Ravin ‘Rocky’ Ramdass, advocate Michael van der Nest (SC).

Ramdass took pains to emphasise that all the HPCSA’s experts had conceded that LCHF aligns closely with South Africa’s paediatric guidelines. Thus, if Noakes’s tweet really was wrong, then the paediatric guidelines were also wrong.

Still, Bhoopchand insisted that the potential for harm from Noakes’s tweet was there. “We bore onus to show potential for harm and we did,” Bhoopchand claimed.

Even if the Appeal Committee accepted that Noakes’s tweet was not medical advice, it was a “public health message”, he claimed. (Mogotsi commented that Leenstra had made it clear that Noakes’s tweet was not advice. In a later tweet, she wrote: “Too much conflicting information.”)

Bhoopchand claimed that the millions, possibly even billions, of Twitter users around the world could have read Noakes tweet. And the “message” he gave on it was “wrong”.

In effect, Bhoopchand attempted to argue that anyone who read Noakes’s tweet could have been his “patient”. And that a public health message was not that different from “advice”.

Bhoopchand found the suggestion that the aspect of “public concern” was not part of the original charge “inexplicable”.

Where’s Onus Of Proof?

And just as he did in his closing argument, Bhoopchand compared Noakes’s case to “Dr Death”, apartheid era cardiologist Dr Wouter Basson. As a more recent example, he cited the Esidimeni hospital scandal. Van der Nest responded just as swiftly. Both comparisons were “wholly inappropriate”, he said. (In closing argument he called the Basson comparison  “insulting”.)

In both cases, people died, Van der Nest said. No one died as a result of Noakes’s tweet. And despite claims to the contrary, the HPCSA had not proved even the potential for harm.

Dietitian Claire Jullsing Strydom

The HPCSA was just seeking to avoid the consequences of failing to prove the foundation of its case. It had made the doctor-patient relationship foundational to the charge against him.

“Once you make something foundational, the onus is on you to prove it,” Van der Nest said.

Strydom and all the HPCSA’s expert witnesses had conceded under cross-examination that there was no such relationship.

Once the HPCSA failed to prove a foundational claim, “that should have been it”. It should have accepted that it had no case, Van der Nest said.

Instead, it carried on prosecuting Noakes. It was thoroughly disingenuous to suggest that if Noakes had pointed out the HPCSA’s weaknesses in its case earlier, that it would have terminated the case.

In grounds for cross-appeal, Van der Nest agreed that  HPCSA rules do not make explicit provision for cost awards in disciplinary hearings. However, neither the Health Professions Act nor the rules preclude the Professional Conduct Committee from awarding costs.

He also argued that there was uncontested evidence that HPCSA had acted in bad faith throughout.

It had “no sustainable case” against Noakes from the outset, he said.  And as a statutory body, the HPCSA did not enjoy legal protection from “manifestly bad behaviour”.

The list of that bad behaviour was long and made a “very poor picture”. It began with the HPCSA’s Preliminary Committee of Inquiry. It was just “the tip of a very big iceberg”.

Who’s A Celebrity?

The  Preliminary Inquiry Committee chair was Wits University head of medical bioethics Prof Amaboo  “Ames” Dhai. Uncontested evidence on the record shows that Dhai and a committee member indulged in “highly irregular” behaviour.

Van der Nest said the HPCSA should also have seen that Strydom was a “disgruntled dietitian“. She saw Noakes as a threat to her livelihood, he said. (Strydom is a dietitian in private practice. Thus, she has a business to protect.) She used his tweet as a pretext to get the HPCSA to prosecute him.

In her letter of complaint to the HPCSA, Strydom called Noakes a “celebrity”. Van der Nest said that Noakes is not a celebrity. He is a world-renowned scientist.

His rating as a scientist by the National Research Foundation is  A1. That is a world ranking, Van der Nest said. It acknowledges Noakes as a world authority in both exercise science and nutrition.

Yet the HPCSA consistently ignored Noakes’s expertise in nutrition. Ramdass called it  “unfathomable” to claim that Noakes was not qualified to give dietary advice.

Van der Nest noted that none of the HPCSA’s experts against Noakes came close to Noakes’s ranking. NorthWest University nutrition professors Hester Vorster has a B1 rating and Salome Kruger a C1. Paediatrician Prof Ali Dhansay, Stellenbosch University psychiatry professor Willie Pienaar and Strydom have no rating.

He pointed out that the HPCSA had not challenged any of Noakes’s evidence or that of his four experts. It was trying to avoid the consequences by “shifting ground” again. It moved from claiming harm from Noakes’s tweet. And the HPCSA now claimed that anyone reading it could have misconstrued it to mean a ketogenic diet.

The HPCSA had not charged Noakes with giving vague, ambiguous, uncertain advice. That was a “Johnny-come-lately” addition to the charge.

“The charge was specific,” Van der Nest said. “As a prosecutor, if you charge someone with giving unconventional advice, you must be able to say why it is unconventional

HPCAS ‘Lost Its Way’

He also questioned why the HPCSA had used the word “unconventional” in the charge.

“Since when do we charge people for being unconventional?” Van der Nest asked. “To move forward, science needs scientists who are unconventional.”

For the Appeal Committee to make a decision reversing the not guilty verdict, it would have to make a scientific finding that Noakes was wrong about LCHF. The Appeal Committee was empowered to make that finding. However, it did not have all the science before it, to make the finding.

The HPCSA had “hopelessly lost its way” in prosecuting Noakes, he said. There were also constitutional implications.

The Constitution guaranteed the right to freedom of expression, including for scientists. Thus, this was an issue not just for Noakes, but for millions in South Africa who express their opinions, Van der Nest said.

Especially worrying was how Strydom managed to get “the might and machinery of a state body” to prosecute Noakes.

The defence’s argument for costs was straightforward, he said. Thus, if the HPCSA had exercised its statutory function fairly, it would not have to pay costs.

“If you litigate against a member without good reason, the (Health Professions Act – under which the HPCSA is regulated) does not limit the Professional Conduct Committee’s ability to make a cost order.”

Therefore, the Professional Conduct Committee erred in not awarding Noakes costs as part of its not-guilty finding.