Why does Australia’s medical regulatory body so badly want Dr Gary Fettke to stop talking to his patients about nutrition? In the first of a two-part series, here’s why legal experts say the campaign against him is Kafkaesque and a kangaroo court. Anything sound familiar?
By Marika Sboros
Is Australian orthopaedic surgeon Dr Gary Fettke the victim of a real-life kangaroo court? The Australian Health Practitioner Regulatory Agency (AHPRA) has banned Fettke from mentioning the “s” word (sugar) to his patients now or in future. Legal experts say that AHPRA’s ban has all the hallmarks of a kangaroo court.
Senators conducting an inquiry into AHPRA’s secretive medical complaints process think so too. The senators haven’t said so in so many words. However, they made it clear in targeted questions and comments to AHPRA CEO Martin Fletcher at the inquiry.
Claire Deeks, enrolled barrister and solicitor of the High Court of New Zealand, also thinks so. She says that Fettke is probably the victim of “gross injustice”. What do you think?
APHRA has been investigating Fettke for more two and a half years now. It has held all its hearings against him in secret. It hasn’t allowed Fettke to attend and defend himself. AHPRA won’t tell him what all the evidence against him is and it changes the goal posts regularly.
It also refuses to tell Fettke who his accusers are. All he knows is that they are anonymous dietitians and presumably members of the Dietitians Association of Australia (DAA). One of the dietitians has reported Fettke for “inappropriately reversing a patient’s diabetes”.
AHPRA’s Nationa Law allows it to act against Fettke as it has acted. However, legal analysts say that doesn’t make it right.
Deeks says that AHPRA’s complaints process in this case “appears to breach the most basic principles of natural justice”. Particularly, she says that it breaches the right for all parties to be accorded due process and a fair hearing. AHPRA also appears to have investigated Fettke without any evidence or claim of patient harm or medical wrongdoing.
Thus, says Deeks, AHPRA’s action against Fettke is “nothing short of extraordinary”.
“It certainly seems at this point that AHPRA has committed a gross injustice.”
Deeks says that many thousands are watching “around the world and with great interest to see how this case unfolds”.
Czech Republic solicitor Jan Vyjidak has studied legal aspects of medical practice at Cardiff Law School and has experience in human rights law. He says that Fettke’s experience would have been vastly different were he living and practising in France, Germany or other member state of the Council of Europe (not to be confused with European Union).
These countries are signatories of the European Convention on Human Rights (ECHR), says Vyjidak.In these countries, everyone enjoys the right to a fair trial. He defines a fair trial as “a fair and public hearing within a reasonable time”. It is also one that an independent and impartial tribunal established by law hears to determine a person’s civil rights and obligations.
Except for specific circumstances, such as in the interest of national security, the judgment must be pronounced publicly, says Vyjidak. Importantly, the right to a fair trial also applies to the grant of a licence or other authorisation to practise a profession and a decision to withdraw it or restrict it in a substantial way.
“These are mechanisms that have been specifically set up to protect everyone from so-called Kafka-style trials – or kangaroo courts, depending on geography,” he says. These are trials where defendants do not know what is the charge they should be answering. They also cannot see the evidence put in front of the panel or cannot provide evidence refuting the charge.
These trials have “unfortunately been commonplace in Europe, particularly but not exclusively in countries with totalitarian regimes”, Vyjidak says.
Fettke was one of four doctors who gave evidence at the first session of Senate Inquiry into AHPRA’s medical complaints process in Sydney on November 1. All spoke movingly of the effects of endemic bullying, harassment and intimidation of doctors in Australia’s healthcare system.
Prof John Stokes, associate professor at James Cook University, said that many practitioners were dissatisfied with AHPRA’s complaints mechanism.
“That is because of the significant unintended consequences of vexatious reporting, which causes practitioner illness,” said Stokes, an intensive care and anaesthesiology specialist.
“It also causes severe financial hardship and in a number of cases that we know about has caused the suicide of very good doctors.”
Click here to read: FETTKE TURNS INTO ‘AUSTRALIA’S TIM NOAKES’
Fettke told the Senate Inquiry that he looks after most of the diabetic foot complications in northern Tasmania. He spoke of his distress at seeing patients “lying around in hospital with obesity related conditions, amputated limbs and non-healing, rotting flesh “. He said that his patients have received nutritional advice that has “put them there in the first place”. Consequently, he felt obliged to do something about that.
Fettke advocates broad principles around evidence-based low-carb, healthy-fat (LCHF) diets to manage obesity and diabetes. His recommendations on cutting sugar and processed food intake are in line with World Health Organisation (WHO). They also align with the Commonwealth Scientific and Industrial Research Organisation (CSIRO) recommendations.
As a cancer survivor, Fettke has been researching nutrition in depth for many years. He told the Senate inquiry that he has also studied the science and biochemistry of Australia’s dietary guidelines and “found them wanting in substance and riddled with vested interest politics”.
He said that those vested interests, including the DAA and members of AHPRA’s Medical Board, were “using the AHPRA process to silence him”.
His only “crime”, Fettke said, has been to recommend that his patients reduce sugar, carbohydrates and other processed foods from their diet. He just wants to save patients’ limbs and lives. For that, he has become embroiled in a sequence of events that puts Kafka into the shade.
Click here to read: CANCER THERAPY OF THE FUTURE? IT’S HERE, SAYS FETTKE
Fettke told the Inquiry about his experience of bullying, harassment and intimidation in the healthcare system. He said that one driver of that bullying was a senior executive at the Launceston General Hospital.
That executive has led “a sustained defamatory campaign posted on a social media hate page”, Fettke said. As a result, this has led to cyber bullying of himself, his wife, staff and friends.
Fettke has reported the abuse to the Tasmanian Health Organisation but received no respite. Consequently, he feels “abandoned by the system”, he said. He did not see the public hospital workplace as “a safe or supportive environment.”
Fettke said that the AHPRA investigation against him is clearly vexatious. (In law, a vexatious complaint is one brought without sufficient grounds. In other words, the aim is simply to harass and intimidate.) As a result, it has led to “massive psychological stress” over the last couple of years.
In August 2016, AHPRA told Fettke that it was recommending that he stop talking to his public and private patients and the public on social media platforms and at seminars about diet and nutrition pending his final appeal. On November 1, AHPRA slapped a lifetime ban on him for just that.
In a lengthy, emailed “caution”, AHPRA told Fettke that despite his two medical degrees, it does not deem him qualified to give nutrition advice. Even if Fettke’s views on LCHF became “accepted best medical practice” in future, AHPRA said that would not change a “fundamental fact”: that Fettke is “not suitably trained or educated as a medical practitioner” to provide nutrition advice.
Click here to read a full transcript of the first Senate Inquiry into AHPRA’s medical complaints process.
AHPRA sent the emailed caution just three hours after Fettke testified at the senate inquiry on his experience of the failings of AHPRA’s process.
It is an understatement to say that Senators Nick Xenophon and Peter Whish-Wilson were unimpressed with the timing.
The senators took special aim at Fletcher at the Senate Inquiry’s second hearing on November 22.
They carefully laid a series of questions for him on AHPRA’s medical complaints process. These became landmines and Fletcher stepped on them all.
Both senators were highly critical of the timing of AHPRA’s emailed final caution to Fettke.
Whish-Wilson told Fletcher: “You can imagine how devastated (Fettke) felt when he received that long email on his phone — having a cup of tea with his wife, trying to settle his nerves, and suddenly he gets his caution after a 2½-year investigation,” he said.
Fletcher denied that the timing was deliberate and said that there was “no relationship between the two events”.
Whish-Wilson said that AHPRA’s action was serious not only from (Fettke’s) personal standpoint.
From the Senate Committee viewpoint, if witnesses felt intimidated or punished (the words that are in the Hansard) then it was “a potential breach of parliamentary privilege”.
That’s if it occurred deliberately. However, even if it were not deliberate, it was “very poor management on AHPRA’s behalf”.
Xenophon asked Fletcher if he would release AHPRA management’s notes and email trail on the release of the statement. That would help the senators understand how within hours of giving evidence Fettke “gets hit with this caution from AHPRA”.
Fletcher repeated that there was “no relationship between the two events”.
Xenophon responded: “I didn’t ask you that. I just asked if you can provide us with the documents.”
Fletcher said: “I’ll see what we can provide”.
Click here for a video of AHPRA CEO Martin Fletcher at the Senate Inquiry.
- Click here for Part 2 of this series
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There are aspects of this case that puzzle me. I want to comment first on the case itself and then the approach to getting it resolved.
Consider a case where dieticians were giving advice about the resetting of broken legs. This would disturb us, and in an extreme case, we would expect the authorities to intervene. What is different in Dr Fettke’s case? Is he giving too much dietary advice? Why has he not referred his patients to a dietician that he is not associated with? Someone independent?
Moving next to process. Could not Dr Fettke strike an agreement with AHPRA whereby he will undertake to recommend independent nutritional advice to his patients. He could, I expect, recommend dietitians who would give what he regards as sound advice.
Finally: the Senate only has the role of “bully pulpit”. I would recommend to Dr Fettke and his supporters that they approach the Secretary (CEO, head) of the Federal Health Department. That is, not Tasmania. AHPRA would not want to have a bad reputation in the Secretary’s eyes.
Hi Michael, you clearly are missing many important aspects of this case. AHPRA recently issued a statement saying it expects doctors to give dietary advice. And so it should. There is an ancient Chinese proverb that says: He who takes medicine and ignores diet wastes the skills of his physician. Any doctor who does not routinely ask patients about diet in nutrition-related diseases is derelict in duty.
Dr Fettke has a special interest in nutrition and has been researching it intensively for many years. He prefers not have to cut off his patients’ limbs when simple dietary changes can save them. Many dietitians do not give this information. Dr Fettke recommends patients only to dietitians he trusts to give unbiased advice. He is only one of more than 70 doctors all of whom recommend patients to the same dietitians’ clinic. In this case, he does have an interest, in that he helped to set up and mentor the dietitians at the clinic. However, Dr Fettke has never benefitted financially from those referrals. Just as importantly, he has always declared that interest openly and fully to his patients. It is an interest that allows him to recommend his patients to dietitians he trusts.
In my opinion, he is simply acting ethically. He is doing whatever is humanly possible to safeguard the interests of his patients and save their limbs. In other words, he puts patients first. Compare that behaviour with his colleagues in deferring to hospital dietitians who give advice that comes out of the scientific ark and endangers patients’ lives and limbs.
Thanks, but your reply puzzles me even more. If Dr Fettke is doing all the right things, why is APHRA pursuing him? It can’t be because he is giving dietary advice because they commend that. Or they would – for evidently he (now) ensures all his patients get all – of their dietary advice from certified dietitians? And it can’t be that he is self-serving in his referrals /conflict of interest/ because (you say) he does not gain financially. What then is the case being argued by APHRA? – what improprieties do they allege? –
My hospital dietitian in Sydney last year seemed very up to date with the science. Is Tasmania different?
Hi Michael, you are not the only one who finds Dr Fettke’s case puzzling. Absurd is more like it. AHPRA seems to be acting on behalf of dietitians, though I can’t think why they would want do that as it’s not their function. One of the dietitians even complained that Dr Fettke had “inappropriately reversed a patient’s diabetes”. The logic of that still escapes me. You’d think the dietitian and AHPRA doctors on its medical board would have been delighted that a patient no longer had diabetes. Of course, that means no repeat business.
The reality is that many doctors and dietitians don’t want doctors like Dr Fettke giving advice that differs from theirs or that could put them in a bad light. The advice he gives runs contrary to Australia’s dietary guidelines. There are powerful vested interests in food and drug companies supporting and benefitting from those guidelines. They also sponsor the Dietitians Association of Australia (DAA) that supports those guidelines. The dietitians who have complained about Dr Fettke are both DAA members. It’s all intertwined and very ugly.
AHPRA’s case against Dr Fettke is shadowy. The goal posts keep changing. AHPRA won’t tell him who his accusers are, it won’t tell him what documentation it has as evidence against him. Yet it expects him to defend himself and give them permission to release documents it hasn’t ever shown him. My view of this case is that Dr Fettke is challenging powerful vested interests in the medical profession, DAA, food and drug industries. They want to shut him up. I doubt they will succeed but in the meantime they have put him and his family through hell.
I’m glad you found a hospital dietitian in Sydney who you think was up to date with the science. Some are. My experience and research of hospital dietitians show a different picture. From what I know of hospital dietitians in Australia, they all have to toe DAA line on nutrition for diabetes and obesity (and other diseases) because if they don’t, they will lose their jobs. Unfortunately, that line is way out of line with the evidence. That means patients are the ones who are suffering. You might just have been lucky and your dietitian at a Sydney hospital might just have been brave.
This does not help. If we are not told what Dr Fettke is being accused of we cannot easily take sides. I must leave open that he is wrong and that they are right. I do not know. – You may want to consider publishing APHRA’s cCorrespondence with Dr Fettke or at least quoting from it in terms of what they think he had done wrong. Natural justice says “hear both sides”.
Hi Michael, I’m not able to help you further. I have given both sides as much as I am able to do so. My posts contain links to full AHPRA announcements, all information Dr Fettke has given on his case, testimony to the Senate hearing, related info etc. AHPRA says it won’t give details of Dr Fettke’s case because of privacy issues. You need to do your own research and make up your own mind.
I now see that APHRA said this in Nov 2016:
“By law, the Board cannot discuss individual cases in detail or publish the reasons for many of its decisions, without the consent of the medical practitioner concerned. Dr Fettke has not yet given his consent for the Board to make public the facts and issues that informed its decision.”
This means that it is impossible for anyone rational to take sides. And it is Dr Fettke himself who is hindering debate. This will be my last comment.
Hi Michael, it is a pity that you wish your last comment to be a stunningly erroneous one. If you researched properly, you would see that AHPRA, not Dr Gary Fettke, is the one hindering and preventing transparency and debate from the outset.
You appear unaware of a basic principle of law in any democracy: that all accused persons have the right to see all evidence against them before being charged, let alone found guilty and sanctioned. And another basic principle of law: that accused persons have the right to know who their accusers are.
AHPRA has refused consistently to tell Dr Fettke what evidence it has against him, who his accusers are, and it has not been clear about what charges he has faced.
Thus it is not reasonable or legal for AHPRA now to demand that Dr Fettke give permission for it to release documents publicly that he has not had sight of first. To make matters worse, Dr Fettke claims to have evidence to suggest strongly that AHPRA has tampered with and/or manipulated documents to strengthen its case against Dr Fettke. Given AHPRA actions up to now in prosecuting him as it has done, I’m very much inclined to believe the worst of AHPRA.
AHPRA claims that it is not going after Dr Fettke because he supports the solid science behind low-carbohydrate, healthy-fat (LCHF) diets for patients with diabetes and obesity. Yet it has banned him for life from talking to patients about nutrition, in particular about reducing sugar in their diets. It also says that even if LCHF becomes mainstream in future, he still can’t talk to patients about nutrition. The illogicality and unreasonableness of that defies belief. The only people who could possibly agree with that would be the many doctors and dietitians wedded to conventional high-carb, low-fat, unscientific dietary guidelines for treatment of obesity and diabetes. Those doctors and dietitians have reputations, careers and livelihoods to lose in the face of evidence to support LCHF for those diseases.
Seems to me AHPRA needs to go to law school and its Medical Board needs a cram course in medical ethics before it can make any demands at all on Dr Fettke in this case. It has demonstrated shocking bias throughout.
What is most disturbing about this case is that there is no sustained public outcry about AHPRA’s prosecution of a distinguished surgeon who just wants to save his patients’ limbs and lives. To my mind, that speaks volumes about the power and ruthlessness of medical and dietetic establishments in your country. It also speaks volumes about why they are protecting the powerful and ruthless vested interests supporting and benefitting from the nutrition status quo.
I’m outraged and want to state my support of Dr Gary Fettke. I’ve known Gary for almost 30 years through his horrific battle with brain cancer and our association in the orthopaedic industry. If there is an individual who as a doctor and surgeon understands the proper function of the human body and what it means to be on the brink of death then Gary is your man. The fact he even survived is a miracle in itself. The fact he lives to guide and advise us how to restore our health is the greatest gift he can contribute because he lives.
There are many such medical experts that understand the horrendous and disastrous consequences of obesity. Orthopaedic surgeons see it every day. The cost to the community and destruction of human life is catastrophic. The blame lies heavily with the consumption of sugar and its derivatives. To those who are only protecting their financial interests and their practices, shame on you. What appalling humans beings. Any attempt to character assassinate Gary Fettke and try to destroy his reputation will result in an army of supporters coming to his defense.
Think what would happen if he’d devised a method for cutting off diabetics’ feet in half the time. They’d fete him as a hero. Trying to prevent the amputations, not so much.
Is there any sort of homogenised movement to support Prof Tim Noakes in South Africa and Dr Gary Fettke in Austrlia? I guess not, but I wish there were.
At least Prof Noakes is getting a public hearing and the science there will out, but Dr Gary Fettke is a horse of entirely a different colour. The egregious nature of his “trial” offends everything free speech and hard science are about. It outrages every fibre of my being. You might expect draconian justice like this in North Korea not Australia.
Written with a sense of deep frustration,
Hi Mike, far as I know there isn’t an organised global movement to support Prof Tim Noakes in South Africa and Dr Gary Fettke in Australia. However, in both cases, social media are alive with support for both. Gone are the times when establishments can breach people’s human rights with impunity. Growing numbers of ordinary people are raising their voices in protest at what powerful vested interests in food and drug companies and medical and dietetic establishments are attempting to do to these dissenting doctors. Both are letting the facts of their cases speak for themselves. As Prof Noakes says, everyone is entitled to their own opinions. They are not entitled to their own set of facts.
I am trying to organize some kind of group of physicians and researchers. In the end, the is likely to lead to more openness about treating diabetes and the ugly political undertow that is keeping the epidemic alive.
This is worse than nonsense. Yesterday I heard on the ABC about an Australian doctor detecting scurvy and giving dietary advice “as a good doctor should” according to Fran Kelly. https://radio.abc.net.au/programitem/pg1aGbekp7?play=true
If AHPRA were worried that Fettke was pointing his patients to his own privately owned clinic(which it seems to me this is all about)..it surely would have been better all round to quietly tap him on the shoulder and say so instead of this STUPID vendetta against him. So typical of the medical profession’s attitude: to shout first, dish out a ridiculous remedy of gagging and have the attitude of Big Brass “we boys must stick together”.
Someone sort AHPRA out….before they do even more damage!!!
Hi Mrs Mallam, you make some good points. However, while Dr Fettke is the brains behind the privately owned clinic and helped to set it up, he does not receive income from it. He mentors the dietitians and is one of 76 doctors who refer patients to it. He always tells patients about his connection. IMHO, it’s just a red herring AHPRA has come up with to silence him on behalf of DAA dietitians and doctors who find him threatening. He has poked the bear of powerful vested interests.
Reading the history and background of Dr Semmelweis will give a valuable insight into the power-plays going on today. Just as other organiSations and individuals have previously promoted an LCHF lifestyle, Semmelweis was not the “first” to call for cleanliness, but he was an easy and convenient target.
Human nature has not changed since then, and the same venal motives appear to be driving Dr Fettke’s accusers.
I must warn my Favourite Cardiologist about the perils of giving ANY dietary advice, aS I believe he has done in the past!
This whole thing just makes me so angry. It’s not just that they are trying to destroy a good, ethical man who is trying to help people. It’s that they want to silence information that could heal people. I think that the word Kafkaesque is too benign here: I’d go for Stalinesque. I’m hoping that the Australia legislature can step in in some way, if only to mandate an open and fair process for anyone the AHPRA attempts to bring charges against.
GARY, THIS WILL BE resolved in your favor. Idiocy and corrupted thinking and ignorant “experts” can only hold sway for so long. Truth always wins but we all know we are up against a thoroughly disgraceful and corrupt medical network of self-serving grandiose paid-off “experts” who will do anything, including the destruction and livelihoods of any who oppose them. The medical boards have no compassion for the defendants, maintaining their absolute authority by shutting out any ideas or practices that conflict with, and hence, unsettle the experts and their corrupted modi operandi.
I too have submitted data to the Senate and I am hopeful, as you are, that sanity will prevail.