by Tim Noakes
Ramdass easily undermined a key aspect of the charge against Noakes: that there was no robust science to support his tweet. The HPCSA had demanded that Noakes provide evidence to support his tweet, yet when he did so, they had gone to extraordinary lengths to dismiss it all. Ramdass pointed out the irrationality and manifest unfairness of this response. All of the evidence presented by the defence was scientifically relevant, he said. Noakes himself had spoken for almost 40 hours, showing 1 163 slides and citing 354 publications and other materials, from RCTs to anecdotal evidence. Ramdass broke it down: Noakes had drawn on 47 RCTs; 28 intervention trials/laboratory experiments; 11 meta-analyses; 77 observational studies; 78 review articles; 24 editorials; 15 books; 48 newspaper articles/media reports/blogs; 14 position stands/statements; 8 letters; 3 videos; and a PhD thesis. In contrast, the HPCSA’s witnesses had come up with little more than a single meta-analysis, the flawed Naudé review.
Ramdass also undermined the suggestion that Noakes’s advice was dangerous and life-threatening because it was unconventional. As a family physician, Ramdass has seen first-hand the effects on people’s health of the so-called conventional nutrition ‘wisdom’. He argued that this conventional advice is based on the South African Food-based Dietary Guidelines, which themselves are unscientific and wrong in material respects. They are also ‘umbilically linked’ to the Dietary Guidelines for Americans, which are based on the diet-heart hypothesis that saturated fat causes heart disease. There is currently no evidence to support this proposition, Ramdass said. Conversely, recent evidence-based teaching has it that a high fat intake is actively beneficial, as it reduces the complications of IR T2DM.
Furthermore, evidence shows that carbohydrates cause serious health problems, Ramdass argued, among them non-alcoholic fatty liver disease. NAFLD has been reliably shown to cause a condition known as atherogenic dyslipidaemia, which leads to arterial damage over time, and eventually cardiovascular disease and cerebrovascular disease. In other words, a low-fat diet actually increases the risk of fatal heart disease, Ramdass said.
It is concerning that Strydom and ADSA still promote the low-fat diet despite all the evidence to the contrary, Ramdass noted. Dr Zoë Harcombe’s observation that it is ‘unethical and unprofessional that ADSA is promoting a low-fat diet despite that there is no evidence to limit fat to 30 per cent’ was both ‘poignant and ironical’, he said.
Harcombe’s evidence on the flawed Naudé review was also critical, Ramdass said. She had found at least 14 errors in the meta-analysis, all of which favoured the conventional, ‘balanced’ diet. Correcting for these errors had shown that the low-carbohydrate diet was superior to the conventional, low-fat diet. The HPCSA had not convincingly contested this finding, Ramdass noted. Its charge that Noakes had given unconventional advice that was not evidence-based was, therefore, ‘ill-conceived and bereft of scientific justification’.
Ramdass also argued that South Africa’s dietary guidelines – and dietary guidelines worldwide – failed to consider the pervasive influence of industry on their formulation. He referred to the evidence presented by Noakes and his Angels that multinationals with vested commercial interests exert significant influence on the guidelines. It was telling that the HPCSA had been unable to answer these allegations, Ramdass said, and that it had failed to address the significant conflicts of interest of its witnesses. Strydom, Vorster and Kruger are all members of ADSA, which has been, and in some cases still is, sponsored by Kellogg’s, Nestlé, Unilever and several other food companies, including Coca-Cola.
In summary, Ramdass submitted that ‘conventional’ dietary advice:
is based on poor or non-existent science;
has no scientific validity;
is the antithesis of what is good;
has contributed to the diabetes and obesity epidemics;
is disease-causing rather than disease-preventing; and
requires moving from the conventional towards a new conventional.
The totality of currently available evidence shows that Noakes is scientifically correct, Ramdass concluded. Strydom, ADSA and the doctors who promote ‘conventional’ dietary advice are wrong. The conventional diet is ‘a recipe for disaster’, and so they are the ones giving dangerous, unconventional advice.
Van der Nest argued that the case against Noakes was never about a tweet or his conduct as a medical doctor. One of many ironies of the case was that it was not a patient or even a member of the public who initiated proceedings. Rather, it was healthcare professionals who had a scientific disagreement with Noakes who launched the prosecution.
‘Their gripe was about his views and the fact that the public seemed to be listening to him and not to them,’ Van der Nest said. ‘The problem was never his conduct as a medical doctor.’ Instead, Noakes’s innocuous tweet was ‘the perfect pretext’ for a prosecution and persecution. It was ominous that Strydom had somehow, ‘miraculously’, managed to get the HPCSA to prosecute him seemingly on a whim. At heart, the case was a ‘wholly objectionable’ invasion of Noakes’s right to freedom of speech and expression, Van der Nest argued.
Starting with the formulation of the charge, Van der Nest said that the HPCSA had faltered at the very first hurdle. It defined unprofessional conduct as ‘improper or disgraceful or dishonourable or unworthy’. Those were serious words dealing with serious conduct, Van der Nest said. Thus, the question that Adams and the committee had to answer was whether the evidence showed that Noakes’s conduct as a medical doctor had been improper, disgraceful, dishonourable or unworthy.
A key pillar of the HPCSA’s charge of unprofessional conduct was the claim that a doctor–patient relationship existed. That was ‘always nonsense and guaranteed to fail’, Van der Nest said. It should have been obvious that the prosecution was not, ‘in truth and reality’, about how Noakes had acted as a medical doctor. It was, after all, common cause that Noakes had not practised clinical medicine for more than 15 years.
Leenstra had addressed an abstract, non-confidential question on an extremely public forum to Noakes and one of his co-authors of the bestselling book, The Real Meal Revolution. It was clear from the outset that she was speaking to them as authors, Van der Nest said. She was not seeking a free medical opinion from a doctor she didn’t know. Understanding this, Noakes had clearly answered her question in his capacity as an author and a scientist. Soon thereafter, Ellmer and Strydom tweeted their responses, expressing their opposing views. Van der Nest pointed out that both are dietitians and thus healthcare professionals. If it were indeed true that Noakes gave ‘medical advice’, then it followed (and the HPCSA’s own expert witness, Professor Willie Pienaar, had conceded) that both Ellmer and Strydom also gave ‘medical advice’.
Of course, Ellmer and Strydom were entitled to differ with Noakes, Van der Nest said. However, the obvious question was why the HPCSA had prosecuted Noakes for expressing his views on Twitter, but not the dietitians. They had given ‘medical advice’ to the same person, in the same way, on the same social media platform as Noakes. Why were they entitled to give ‘medical advice’, but he was not? Who said that Noakes, a scientist with a rare A1 rating in both sports science and nutrition, was wrong and should be silenced, and that the dietitians were right and thus permitted to speak freely?
Van der Nest raised other uncomfortable questions for the HPCSA: ‘Is that even how we approach freedom of expression? And are the millions who are active on Twitter not entitled to hear all sides of a diet debate and make up their own minds?’
The HPCSA’s response to its failure to prove a doctor–patient relationship spoke volumes. Van der Nest said that the HPCSA had created yet another schizophrenic moment by refusing to accept the failure as proof that it had no case. Instead, it had changed tack, with Bhoopchand claiming in his closing argument that the doctor–patient relationship was, in fact, irrelevant, and that Noakes had acted unprofessionally in circumstances where Leenstra was not his patient. The HPCSA’s claim that the onus was now o
n the defence to prove that there was no doctor–patient relationship was never a tenable position, Van der Nest said. Raising a defence did not lead to a reverse onus. Nor did it excuse the prosecution from having to prove the pillars that supported its case.
Van der Nest showed other instances where the HPCSA had significantly shifted the basis of its case. According to Bhoopchand’s closing argument, Noakes was now guilty of unprofessional conduct merely for saying something on Twitter. The HPCSA claimed that Noakes’s tweet fell within the ‘scope of the profession of medicine’ and was an ‘act pertaining to the medical profession’. Citing Regulation 237 of the Health Professions Act, they tried to argue that instead of giving advice to a single patient, Noakes had tweeted an ‘unconventional public health message’ to the world. This was another nonsensical claim, Van der Nest said.
He similarly dispatched the claim that Noakes had breached the norms and standards of his profession with his tweet. In acknowledging the ‘elephant in the room’ – the lack of norms and standards for medical professionals on social media – the HPCSA should have realised that it had no case. Without saying so directly, Van der Nest made it clear that the elephant had trampled the HPCSA’s case to death. The statutory body had it ‘back to front’, he said. It should have written up rules first, before prosecuting Noakes. The HPCSA had ‘hopelessly lost its way’ in its ‘win-at-all-costs’ approach.
Van der Nest continued to systematically demolish another crucial pillar of the HPCSA’s case: that Noakes gave ‘medical advice’, as opposed to information, in his tweet. Van der Nest argued that there was ‘a very big difference between medical advice and information’. For starters, liability assumed that a doctor could only give medical advice, conventional or otherwise, to a patient. Absent a patient, that argument fell away, or so any reasonable person would assume. Noakes had made it clear from the outset that Leenstra was not his patient, and that he had answered a scientific question as a scientist and an author. Moreover, Leenstra’s tweeted question was neither clinical nor medical.
Twitter is well known as a large, information-sharing, public platform, Van der Nest said. It is not a place where doctors and patients go for one-on-one consultations, because there is no privacy and confidentiality. Leenstra was not Noakes’s patient. She was simply a consumer of the information he and others tweeted. She was free to do whatever she liked with that information.
Giving information on Twitter is no different from writing it in a book or delivering it from a stage, Van der Nest argued. If the HPCSA believed its own argument that Noakes gave medical advice by expressing an opinion on Twitter, then the same could be said of his books and public talks. It could also be said of any other author who gives information related to nutrition or health. Thus, if the HPCSA found Noakes guilty of giving medical advice on Twitter, it would have to prosecute all health professionals who wrote diet books or said anything that irritated Strydom or ADSA. Dietitians would only need to label views as dangerous or life-threatening to have the HPCSA prosecute those who disseminated them in public, Van der Nest said. The dietitians would not even have to show any harm. The massive invasion of freedom of expression was obvious, he said.
In charging Noakes with tweeting unconventional advice, the HPCSA was also legally obliged to define what it meant by ‘unconventional’. In providing further details of the charge, the HPCSA had told Noakes that ‘the key consideration’ was that recommended ‘medical nutrition therapy’ should be ‘grounded in evidence-based best practice, which in this case would be the evidence-based dietary guidelines’. In other words, the HPCSA defined conventional advice as evidence-based advice that followed South Africa’s nutritional guidelines for breastfeeding and complementary feeding. Yet both Vorster and Kruger had conceded that LCHF, in fact, aligns with these guidelines.
Another major weakness in the HPCSA’s case was that it could not define LCHF. ‘If you prosecute someone with giving unconventional advice, you must be able to say what the unconventional content of that advice is,’ Van der Net said. ‘If you, as the prosecutor, can’t say what it is, then it means that you cannot show that the advice is unconventional. You cannot prove your case.’ The moment the HPCSA said that it did not know what LCHF was – and that no one knew – its case went ‘out the window’.
Another bizarre element of the HPCSA’s case – probably tied to its limited understanding of LCHF – was its experts’ insistence that Noakes had somehow advised a ‘dangerous’ ketogenic diet for babies. Van der Nest pointed out that the HPCSA had not charged Noakes with advising ketogenic diets for infants, and that nowhere in his tweet had he made any reference to ketogenic diets. Noakes and his experts gave extensive evidence to show that he had not advised such a diet for infants. They also showed that ketogenic diets are not dangerous when used appropriately. The HPCSA was unable to challenge their evidence, yet ketogenic diets remained an obsessive red herring.
Van der Nest also highlighted the irony behind the HPCSA’s charge that Noakes’s advice was unconventional. Ordinarily, a charge of unprofessional conduct meant disgraceful, unworthy or improper conduct by a medical practitioner, he said. Yet how could it be disgraceful, unworthy or improper to give unconventional advice that was not harmful? ‘Do we really prosecute people for being unconventional, without doing any harm?’ Van der Nest asked.
This brought him to the ‘most objectionable part’ of the HPCSA’s case against Noakes: that he had been prosecuted in the complete absence of a patient and in an ‘absolute vacuum of harm’. More than three years after the tweet, the HPCSA had still not provided a shred of evidence to show harm from an LCHF diet, Van der Nest said. It had not shown any evidence of harm from Noakes’s tweet or from any of the other 29 000 tweets he had sent up till then. One of the HPCSA’s own witnesses, Professor Salome Kruger, had even acknowledged that LCHF ‘is not harmful’. Noakes and the Angels had also testified in detail about the safety and efficacy of LCHF. The HPCSA had been unable to challenge or answer their evidence. And when it could not prove harm, Van der Nest said, the HPCSA did what it does best: it changed tack once again. After having made it clear from the beginning that harm was crucial to the charge of unconventional advice, Bhoopchand now said in closing that the HPCSA did not have to show harm. That’s because there was no harm, Van der Nest remarked. ‘When one tries to determine why this has happened [a prosecution in the absence of any harm], the answer lies, at least in part, in the fact that this case has revealed gross unfairness and injustice on the part of the HPCSA.’
In fact, the HPCSA had demonstrated significant bias against Noakes even before it decided to prosecute him, Van der Nest argued. It started with instances of ‘highly irregular’, inappropriate and biased conduct on the part of members of the HPCSA’s Fourth Preliminary Committee of Inquiry. The committee’s primary function was to decide whether there should be a hearing and, if so, to formulate points of inquiry against Noakes. After that, committee members should have hung up their HPCSA hats and returned to their day jobs. As the incriminating email chain in the prosecution’s file showed, that’s not what happened.
The preliminary inquiry committee became personally vested in the prosecution of Noakes, Van der Nest said. Before they charge anyone with unprofessional conduct, committee members should ‘perhaps look at their own conduct’, he observed drily.
Returning to the topic of Noakes’s scientific views being ‘unconventional’, Van der Nest said that history is replete with examples of pioneers who furthered medical science, yet who were considered unconventional at the time. By way of example, Van der Nest cited Australian physician Dr Barry Marshall, who infected himself with Helicobacter pylori to prove his hypothesis that peptic ulcers were caused by the bacterium, and not by acid, stress and spicy foods, as the conventional view held. When he developed an ulcer and treated it with an antibiotic, he won the Nobel Prize. ‘That was the end of the conventional way of treating such ulcers,’ Van der Nest said.
Galileo w
as another who was relentlessly prosecuted and persecuted for his views. People called him a heretic for saying that the earth revolved around the sun. ‘Have we learnt so little about prosecuting scientists in the past 300 years?’ Van der Nest asked.
The HPCSA appeared not to understand the fluid nature of scientific research and that ‘what is unconventional today easily becomes tomorrow’s conventional’, he said. Credible scientists and doctors could easily be unconventional without being dishonourable. They could be ‘incorrect without being unworthy’. They could also express unconventional views in public to a person who was not their patient without being disgraceful or improper.
For medicine to develop, scientists and doctors must challenge conventional frontiers, Van der Nest said. ‘The HPCSA should have no sway over what scientists and authors believe and say.’ This holds true, no matter the nature of the forum scientists and authors use to express their views. Every South African should ‘recoil when a scientist [or doctor] is prosecuted for his scientific opinions’.
‘Sometimes we all need to hear why the earth might not be flat and why the sun does not revolve around the earth,’ Van der Nest said. But most importantly, he said, South Africans should not stand for the use of statutory bodies to bully into submission those with whom other academics, scientists, doctors and dietitians may disagree. Therefore, he concluded, the HPCSA’s Professional Conduct Committee should find Noakes innocent of all charges.