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.
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Dr. Noakes should have used ME in his court case – I have the BLOOD WORK to prove it. My GP said the BLOOD never lies!
There is NO WAY IN HELL that I will trust a nutritionist above Dr TIM NOAKES. NEVER. He saved my life. I have Familial HYPERCHOLESTEROLEMIA and I went full KETO (70% fat such as butter, lard, tallow, goose, duck, fish, Extra virgin coconut AND olive oil) and very little carbs and just as in kids with Epilepsy, suddenly my cholesterol of 14 plunged to 6 (THAT is normal, I don’t care what they say – saw over the years how the curves went lower, normal used to be 5 to 7.5 then it came downer and downer to sell statins). My Trigs (which is the one that kills came down to .07 where it used to be 2. My doctor said it looked like my results did not belong in my hefty file. I got physically ill from this malicious god-awful trial. There a nutritionist on TV who insists that a lunch box should have ALL the food groups. Yeah, I know of someone who follows that and her kids are really obese (from all the food groups). Sick of this nonsense – same goes for the salt police. GO AWAY.
Thanks for sharing your stats, Chloe. I would sooner believe your results (and my own of course) over a mainstream ‘professional’ any day of the week from now on. That goes for dubious studies that are backed by those who stand to financially gain by the results. We’ve been horribly misled for decades and I will never allow myself or anyone I know to be fooled again. Thankfully, we have people like Tim Noakes, Marika Sboros and so many other wonderful rebels helping us to regain our health and saving lives. I’m very grateful to them, while disgusted by those like @dieticianclaire et al.
I don’t see any major news organization following this story. Have you sent this to NYTimes,
Guardian, WNYC, and TV broadcast networks?
A nauseating waste of time and money. When is a judge going to stand up and shout out at the stupidity of this trial? When is Bhoopchand going to show a slice of morality and say: “Ok, folks, I’ve made a stinking amount of money mucking about in this squalor, even pigs can only consume so much. I can retire thrice over fat and immoral. No more!”
I suppose there is as much chance of Trump admitting he’s a textbook narcissist or Zuma wanting what’s really best for SA.
Thank you Marika for hanging in there while the moon turns green.
Thank you Marika.
I am also one that has benefited from the LCHF way of life. It’s a crazy world and crazy that Tim Noakes should be singled out in this way when he is such a genuine scientist trying to steer the planet back on course with its way out of kilter eating regimes of processed food and harmful fad low-fat diets high in sugar.
Processed low-fat and high-sugar food is so wrong and very harmful yet this is what the majority of babies in this country are weaned on. Who is really behind all this? Somebody who sells powder in a box I bet!
I regularly “preach” LCHF and intermittent fasting to anyone who will listen, but I rarely do it in tweets. 🙂 And, actually, I usually add a qualifier to not trust me, just in case. So, I suppose I am safe from being taken to court.
I’m also not a doctor, nor a scientist, just an intelligent, curious, questioner who has been eating smart for about 7 years, so I assume I’m not a threat to the conventional big food, big money people.
I am so looking forward to hearing that Dr. Noakes has been vindicated from this ridiculous charge.
Thank you so much, Marika, for keeping us all in the loop.
Add my voice to the chorus of thanks for covering this witch hunt so thoroughly.
One thing that struck me, reading through the tweets from the past couple of days, was the prosecution’s complete confusion about what diet they were talking about. How on earth did the ketogenic diet even make an appearance?
Good question. All the prosecution “expert” witnesses raised it from the start. So did Claire Julsing Strydom, the dietitian who was so “horrified” by Prof Tim Noakes giving the same advice she gives. Kafkaesque doesn’t begin to describe what went down at this trial. I have covered trial from day one, sat day in and day out. It has been a revelation, the lengths to which doctors and dietitians will go to silence someone who holds different – and thoroughly scientific – views from theirs. The HPCSA calls it a hearing. It made the hearing into a full-blown trial. That raises the questions: Who made them do that and why?
Marika, from your previous reports it seems they didn’t understand what a ketogenic diet is. Either through ignorance, or in an deliberate attempt to prejudice the hearing, they mixed up a ketogenic diet with ketoacidosis. Rather like mixing up having a drink of water and drowning.
The problem is that Chubby Julsing and her HPCSA mates are so incompetent that it’s difficult to be certain when they’re just being dumb from when they’re trying to mislead.
Hi Stephen, I was also surprised at the level of ignorance about ketogenic diets not just on the part of dietitian CLaire Julsing Strydom. All the HPCSA’s expert witnesses – two professors of nutrition and a paediatrician – also showed extensive ignorance. They all appeared to think that LCHF is a synonym for ketosis, ketogenic diets and devilish danger. At times, some confused ketosis with ketoacidosis. That was most surprising of all. Even I know that the two are as different as angels and demons. How come they don’t know? But there are many unanswered questions in this case. One of them is why a statutory body chose so enthusiastically to prosecute one health professional at the behest of another and on the most frivolous of complaints. Another is why it did so without any patient or even the vaguest hint of harm. Most peculiar.
One of the amusing things about most dietitians is how amazingly proud they are about their worthless degrees. With honourable exceptions, most dietitians are third rate compared to real scientists and can barely write a coherent sentence, as Claire Julsing Strydom has demonstrated more than once. It’s a pseudo profession that can’t give even passably useful advice about what to eat. Their advice to diabetics does more harm than most criminals can manage on a busy day.
As for professors of nutrition, well, the emperor really has no clothes. The average builder has a better intellect and is far more useful.
To me the whole attack on Dr. Noakes smacks of desperation.
I worry that if they have pushed this totally absurd case this far, that they may have fudged the outcome in their desperation. Although I believe the Advocate presiding has lots of integrity, I worry about the panel that comes from the already compromised HPCSA
We live in a South Africa where even the most senior leaders of state will brazenly tell lies and pervert justice. The HPCSA panel do not seem to be subject to the controls of the courts and there are some very wealthy corporations in the background, with vested interests, who may influence the outcome
This is beyond ridiculous. No doubt someone behind all this. And how many other folks are on social media doing EXACTLY the same thing as he does. Wake up! It’s time to get educated on good nutrition and not stay stuck in the stone age mentality of nutrition, which the World Health Organisation (WHO) is stuck in. The WHO is not up to date with new scientific information. It proves time and again that it is not prepared to even test or even consider this new evidence.
South African food products you buy on the shelves are full of either sugar or artificial sweeteners and dozens of chemical preservatives, which if you Google each one, it tells you what these chemicals do to your body.
So with Prof Tim Noakes’ diet or rather a new lifestyle, he is walking proof that it works.
To Prof Noakes, all the best and may you set a precedent for a change of diet. Good luck.
Thank you Marika for your endless coverage of this witch hunt. And may Prof Tim Noakes win!
+1
Thanks Marika – brilliant commentary on this absolute farce of a case.
I am one of the thousands who benefit from LCHF. Strength to Prof Tim Noakes, his leagal team and everyone who supports him.
I do hope there will be repercussions for dietitian Clair!
Trappings of false rectitude
Define this whole debate
The standard of the arguments?
Profoundly second rate.
They would have all believe
It builds morality,
The facts, though, on the other hand
Are plain for all to see.
A “case” that’s steeped in animus
With jealousy writ large
The point of which is obvious
To prove just who is in charge.
Brilliant!!
excellent !
Bravo!
An excellent ‘court’ report. I’ve been in court many times and when the prosecution changes its grounds for proceeding once in a case the whole thing is likely to be thrown out. The HPCSA’s case starts with one complainant, moves without explanation to another and has no victim. The patient-doctor relationship is highlighted and then dropped. It’s introduces evidence about adults, but then says the case is only about infants. The case is an incoherent shambles. It was desperate and wholly misguided stuff from the beginning.
I look forward to going to a professional dietician and no longer being confronted by products on display – all high-sugar, high-carbs cereals for babies, etc The reason they are doing this is more than obvious.
Thanks for the excellent reportage, Marika. We appreciate the time, effort and meticulous care that you are putting into it.
A “doctor-patient” relationship on Twitter- the mind boggles! Any room for patient confidentiality in the on-line world?