By Marika Sboros
Prof Tim Noakes was guilty of unprofessional conduct on “a balance of probability”, advocate Ajay Bhoopchand argued in closing yesterday. He also accused Noakes of using the Health Professions Council of SA’s (HPCSA) hearing to “settle personal scores”. He said there was an “elephant in the room” in this case – doctors’ conduct on social media.
Johannesburg senior counsel Michael Van der Nest argued that Noakes was not guilty of unprofessional conduct. The only ones using the hearing to settle scores were 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 get him to agree, 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).
A ‘horrified’ dietitian
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 was “schizophrenic”. From the start, the HPCSA created confusion about who the complainant was in its case and why it was prosecuting Noakes at all.
Strydom made clear in her letter of complaint that she was the complainant, Van der Nest said. She made multiple references to herself in the first person. She made no reference to “we” or to ADSA. In her evidence at the hearing, she also made it clear that she was the complainant.
Yet the HPCSA persisted in its contention that ADSA was the complainant, with no timeline or explanation for the change.
Elephant in the room
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 applied. These “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. Therefore, it could not accuse Noakes unprofessional conduct for breaching non-existent rules.
The HPCSA had its case “back to front”, he said. It must learn from this case 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 at least 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 also did not call her as a witness or subpoena her on any harm.
‘Absolute vacuum of harm’
The “most objectionable part” of the case against Noakes was that the HPCSA has prosecuted him in an “absolute vacuum of harm”. Three years after the tweet, the HPCSA had not provided any evidence of harm, to adults or children from an LCHF diet, he 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 did not have to prove harm from “unconventional advice” to prove unprofessional conduct.
“How can it be disgraceful to give unconventional advice that isn’t harmful?” Van der Nest asked. More to the point: “Do we really prosecute people for being unconventional, without doing any harm?”
The HPCSA wished to persuade the Professional Conduct Committee that it did not have to show harm. That was because they knew 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.
No doctor-patient relationship
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 that he tweeted 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. 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. Crucially too, the HPCSA’s own regulations made no provision for plea explanations.
Van der Nest pointed out that when Noakes asked for particulars of the charge against him, the “doctor-patient relationship was at the top”.
The HPCSA had also called its last witness, Stellenbosch University psychiatry professor Willie Pienaar, specifically on the doctor-patient relationship. Evidence from all three other HPCSA expert witnesses was 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.
Changing tack, moving goalposts
This was not a tenable position, he said. Raising a defence did not reverse the onus. Nor did it excuse the prosecution from having to prove crucial elements of its case.
The HPCSA had ignored a doctor-patient relationship because it could not prove one, Van der Nest said. 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. If there were a doctor-patient relationship, then Strydom and dietitian Marlene Elmer were equally guilty of giving “medical advice” on a social media.
They would have acted within a doctor’s “scope of practice” without registering as doctors with the HPCSA. Moreover, they 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 was unsolicited medical “advice”. He said that Noakes’ own evidence was that there was no globally accepted definition of LCHF. As well, LCHF was not “globally known as a complementary feeding diet”.
LCHF under the spotlight
Therefore, the advice on LCHF was unconventional, he said. It was also dangerous as it had the potential for harm.
To support his contention, Bhoopchand said that Noakes had recommended a diet “related to losing weight” for an infant. A “reasonable person” could have interpreted Noakes’ tweet to mean advising a “dangerous” ketogenic diet.
Bhoopchand also said that the case really was 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 related to the first two years of an infant’s life. He also said that this period included the recommendation of exclusive breastfeeding.
Thus, the Committee should dismiss as irrelevant any evidence from Noakes and his witnesses 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”.
Truth and lies
He had earlier acknowledged Noakes as “an extraordinary” person. However, he accused Noakes of being a “flippant”, “cynical” and an “untruthful and evasive” witness.
Van der Nest objected. On the contrary, stacked up against the HPCSA’s conduct against him, it was clear who was dishonest and evasive, he said. 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. He referred to the secret report from North-West University nutrition professor Hester “Estee” Vorster. 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.
- Click here for full coverage of The Noakes Trial
- Follow me on Twitter @MarikaSboros
- Like my Facebook Page
- Subscribe for email notifications of Foodmed.net postings