by Tim Noakes
Zinn admitted that in the past she had ‘unthinkingly’ advised parents to feed infants cereals fortified with iron. ‘It never occurred to me to ask why infants would need cereals fortified with iron when meat is available and a very good source of iron,’ she said. ‘Anthropologically, we have done fine for millions of years without giving infants cereals with added iron.’
She agreed with the HPCSA expert witnesses that LCHF ‘aligns easily with South Africa’s paediatric dietary guidelines’. So did Noakes’s tweeted advice, Zinn said. The problem is that there is ‘a disconnect’ when dietitians implement the guidelines on a practical level, she said, because of the insistence on including cereals as part of complementary feeding for infant weaning.
Under cross-examination, Zinn agreed with Bhoopchand that she was not against starchy foods ‘per se’. She did not, however, agree with the official dietary guideline that starches ‘should form the basis of most meals’ for children and adults. Bhoopchand introduced the issue of ‘nutrition transition’ from rural to urban populations in South Africa. Nutrition transition refers to the shift in diet that coincides with economic, demographic and epidemiological changes. Vorster had raised this as proof that Noakes’s advice was ‘unconventional’. Bhoopchand told Zinn that she should be aware of ‘the stark reality of poverty’ and ‘aspects like under-nutrition and over-nutrition amongst the children in this country’. He referred to a public-health principle: ‘To establish what your population that you are working in actually eats,’ he said.
He focused on mieliepap, a porridge made from ground maize that is a staple in South Africa’s poor communities. He suggested that it is unrealistic not to expect poor people to feed it to their infants. Zinn responded by saying that it is ‘not necessarily best practice’ to tell people to eat something just because they have done so historically, or because it is cheap. She endorsed Noakes and Harcombe’s view that it is not right to recommend a food on the grounds of affordability alone, especially when it is a carbohydrate food that is not essential to the infant’s diet.
Zinn dismissed the HPCSA witnesses’ claim that LCHF could cause nutrient deficiencies in infants. An abiding myth about the diet is that it is low in nutrients, she said. ‘In fact, a well-formulated LCHF diet provides even better nutrients and more fibre than a mainstream low-fat diet.’ Harking back to what she had said previously about starchy foods and phytates, she argued that there is a far higher risk of micronutrient deficiency in infants raised on baby cereals and carbohydrate-based foods, because the phytates in these foods compromise infants’ levels of essential vitamins and minerals.
Zinn addressed another issue that the HPCSA experts had flagged as a potential problem with LCHF: possible vitamin A toxicity from excessive liver consumption. She showed that this concern is irrational. Vorster herself had said that South Africa follows the WHO’s paediatric guidelines, which advise ‘fish, meat, eggs, liver every day and as much as possible’. Liver is one of the best food sources of bioavailable iron and vitamin A, but you’d have to eat enormous amounts of liver daily to suffer vitamin A toxicity, Zinn said. And because liver is ‘not the sexiest food … you usually have to combine it with meat to make it palatable, especially for infants’.
If vitamin A toxicity occurs at all, it is usually from dietary supplements (synthetic vitamin A), not real food sources, Zinn said. She knew of only one reported case of infant death due to vitamin A toxicity. It involved a synthetic preparation of 90 000 international units given daily for 11 days to a month-old infant weighing 2.25 kilograms. Vitamin A deficiency, not toxicity, is a far greater problem in the South African population.
Zinn also destroyed the link the HPCSA’s witnesses had tried to make between Noakes’s tweet and ketogenic diets. His tweet wasn’t even close to being about a ketogenic diet, she said. Through her research she had come to realise that fears about low-carbohydrate and ketogenic diets are ‘just scaremongering’. Zinn told the hearing that she is now embarrassed to say that she used to teach her students that low-carb diets were bad because ketosis was dangerous. This was largely due to confusion around nutritional ketosis and ketoacidosis. The latter is a condition that mostly affects type-1 diabetics. It is very different from nutritional ketosis. Zinn said that she had not even heard about nutritional ketosis until she looked at the biology and the evidence. What she found led her to change her mind and her practice.
‘Ketones occur naturally in the body and are safe,’ she said. ‘Infants default into a state of ketosis when they are born. They need ketones for optimum brain development in their early years.’ And while ketogenic diets could be ‘extreme both for adults and for children’, nutritional ketosis is ‘not something that you can reach easily at all’.
Zinn agreed under cross-examination that she is not an expert on ketosis or neonate nutrition, but said that she has never claimed to be one. She has, however, done extensive and ongoing research into ketogenic diets for sports performance. In one study of the ketogenic diet for multisport athletes, while data showed a drop in performance in the short term, all athletes experienced substantial improvements in health outcomes and inflammatory conditions that convinced them to continue eating LCHF after the study was over, with only minor adjustments. In another study of low-carb diets for power-lifters gearing up for competition, Zinn’s team found that athletes could drop body fat without compromising strength in the lead-up phase.
Zinn also addressed society’s fear of fat. For too long, she said, people ‘feared fat’ because the experts had drummed it into their heads that ‘fat is bad’. These days, when she lectures to students, her message is simple: ‘Don’t believe me. This is a university. Here is the evidence for both sides. Go and read widely through a critical lens and make up your own mind.’
This last remark was clearly aimed at the HPCSA’s witnesses. All the Angels emphasised that good science requires looking at all the evidence, not just the bits that suit a cherished belief. The subtext was that if the HPCSA and its willing cohort of experts had bothered to look at all the evidence, the hearing might never have happened. The HPCSA might not have foolishly rushed in where angels fear to tread. The HPCSA would have found that Noakes’s advice was neither unconventional nor dangerous.
There’s a proverb that says: ‘Angels speak to those who silence their minds long enough to hear.’ The HPCSA’s legal team, witnesses and consultants did not appear willing or able to silence their minds long enough to hear the compelling scientific evidence presented by Tim’s Angels. As the final day of the hearing drew to a close, Noakes and his supporters could only hope that the members of the Professional Conduct Committee had heard loudly and clearly.
14
Closing Arguments
‘I was taught that a lawyer was supposed to be a custodian of the community’s legal and ethical sense.’
– Joe Jamail, American attorney and billionaire
There were many factors that made the HPCSA’s prosecution of Professor Tim Noakes seem suspect. One was the ferocity with which the statutory body went after him. Another was the unbridled enthusiasm with which the HPCSA, which is meant to represent all its members, argued so vociferously on behalf of the dietitians who had allied against him. Yet another was the HPCSA’s disingenuous habit of changing tack or simply moving the goalposts whenever it failed to prove an element of its case, which was often. This legally and ethically questionable tactic, however, led to some spectacular own goals. One example was a press release the HPCSA put out on Friday 28 October 2016, two days after the hearing adjourned. In it, the HPCSA mistakenly announced to the world that it had found Noakes guilty of unprofessional conduct. The HPCSA admitted its error, but only six hours later. By then, extensive damage had already been done as the libel spread rapidly across social media. While the HPCSA ended up with legal and ethical egg on its face, no heads rolled over the matter.
The HPCSA’s conduct has led me to describe the case against Noakes variously as a bizarre theatre
of the absurd, a sojourn down the rabbit hole into Wonderland, and Kafkaesque. Noakes’s lawyers deliberately called his prosecution ‘a persecution’. Their reasoning became apparent during closing arguments on 4 and 5 April 2017.
Unsurprisingly, there was tension in the air when the hearing reconvened at the Belmont Square Conference Centre in Rondebosch, Cape Town. The HPCSA’s legal team was present: HPCSA prosecutor Meshack Mapholisa and two external lawyers, instructing attorney Katlego Mmuoe and counsel Dr Ajay Bhoopchand. Assisting them as usual was UCT nutrition professor Marjanne Senekal. Many people saw Senekal’s involvement in the case as inappropriate for an academic of her status and position. After all, Noakes was a colleague and her superior at UCT. From the outset, she would not engage with him on the science for LCHF.
Seated next to Senekal was Cape Town paediatrician Dr Muhammad Ali Dhansay. Dhansay’s continued presence, even after he had given his evidence as an expert witness for the HPCSA, was noteworthy. His links to the ILSI had by now caught up with him. In February 2017, Russ Greene had revealed that the SAMRC was investigating Dhansay’s ties to the sugar and soft-drink industries.1
Claire Julsing Strydom, the ‘complainant’ in the case, was once again conspicuous by her absence.
Noakes and his legal team, comprising instructing attorney Adam Pike, senior counsel Michael van der Nest and counsel Dr Ravin ‘Rocky’ Ramdass, settled in as Bhoopchand began his lengthy closing argument. He took more than 104 000 words to make his case. It ended up circuitous, contradictory and rambling, a lesson in sophistry. Bhoopchand began by acknowledging Noakes as ‘an extraordinary South African’, but then went straight for the jugular. Employing mixed metaphors, he attacked Noakes’s character, questioning his trustworthiness, reliability, integrity and credibility as a scientist. He suggested that Noakes had brought ‘the blade of the guillotine’ down on himself.
In the course of the hearing, the HPCSA had unambiguously built its case on three pillars:
Noakes had a doctor–patient relationship with Leenstra.
He had breached the HPCSA’s norms and standards for medical professionals.
He had tweeted unconventional ‘medical advice’ that was not evidence-based, and which was therefore dangerous and could have caused harm.
The first pillar had proved particularly challenging for the prosecution lawyers. Bhoopchand now argued that the HPCSA did not need to prove a doctor–patient relationship; that the charge against Noakes was ‘independent of whether a doctor–patient relationship had formed’. The provisions of the Health Professions Act that govern the HPCSA do not require proof of a doctor–patient relationship, he said, or even the existence of ‘a contractual nexus’. Bhoopchand argued that the onus was now on the defence to prove that there was no doctor–patient relationship. At the same time, he claimed that it was irrelevant whether Leenstra was Noakes’s patient, for anyone reading his tweet could be considered a patient. Thus, Bhoopchand argued, even if Leenstra were not Noakes’s patient, he had still acted unprofessionally in giving unconventional medical advice on a public platform. Bhoopchand seemed oblivious to the absurdity of his claims.
Using Noakes’s written reply to Strydom’s complaint, Bhoopchand tried to show that Noakes had knowingly tweeted as a doctor, not as a scientist. ‘Which hat was the respondent wearing when he answered the initial tweet?’ Bhoopchand asked. ‘That of a scientist or that of a medical practitioner? This is a question of fact and the answer lies in the nature of the question asked, the nature of the reply and the content of the letter of reply … The pro forma [the HPCSA] submits that the tweets point conclusively to clinical material and the replying tweet was a clinical answer. The content of the letter of reply indicates that the respondent was responding to the complaint that he had given medical advice and that he was protecting his reputation as a medical professional. The pro forma argues that in the absence of a contemporaneous denial from the respondent that he acted as a scientist when he tweeted the replying tweet to Ms Leenstra, and with the content of his letter of reply suggesting that he acted as a medical practitioner, any allegation to the contrary smacks of a retrospective reconstruction of the evidence to evade the charge.’
Bhoopchand was essentially accusing Noakes of some sort of deliberate sin of omission. He faced similar problems with the second pillar of the HPCSA’s case: that Noakes had breached the norms and standards for medical professionals with his tweet. The HPCSA does not have any norms and standards for doctors on social media. Bhoopchand called this the ‘elephant in the room’, but then said that the elephant didn’t really matter. ‘The current guidelines indicate that they cannot be construed as a complete set of rules of conduct,’ he argued. ‘The HPCSA is empowered to deal with any complaint of unprofessional conduct referred to it. Practitioners are implored to apply the set of ethical guidelines in Booklet 1 to any situation that is not covered by the guidelines.’ The implication is that the provisions of the Act and the various HPCSA guideline booklets bring activity on social media into the ambit of HPCSA norms and standards.
The third pillar was two-pronged and represented the real meat of the case against Noakes: that his tweet constituted medical advice, not information; and that this ‘advice’ was unconventional, not evidence-based and therefore dangerous. Bhoopchand focused much of his argument on the claim of harm. He said that according to Noakes’s own evidence, there is no globally accepted definition of LCHF. Without consensus on a definition, the tweet could not be considered conventional advice. And in the HPCSA lexicon, unconventional is a synonym for harmful or, at the very least, potentially harmful. None of the HPCSA’s witnesses had produced any evidence of harm from Noakes’s tweet. But, Bhoopchand said, the HPCSA did not need to prove any harm. All it had to prove was the potential for harm. There went those goalposts again.
Bhoopchand argued that LCHF is not ‘globally known as a complementary feeding diet’, and that the WHO and health bodies in Canada, America, Australia and Europe all consider advising LCHF for babies to be unconventional. He also argued that LCHF is more widely known for weight loss. It therefore made no sense to recommend a diet ‘related to losing weight’ for an infant. Furthermore, a ‘reasonable person’ could have interpreted Noakes’s tweet as advising a ‘dangerous’ ketogenic diet, Bhoopchand said. Besides the fact that the HPCSA had not charged Noakes with advising a ketogenic diet, like all his expert witnesses, Bhoopchand was wrongly conflating LCHF with ketosis, and ketosis with ketoacidosis.
Bhoopchand also tried to dismiss all of the evidence Noakes had presented by saying that the charge was ‘narrow’ and related to infant nutrition only, and expressing ‘surprise’ that the defence had interpreted it broadly to include adults. In a clear swipe at the Angels, and Teicholz in particular, he said that Noakes had placed a ‘burden’ of superfluous evidence on the ‘jury’, and that Adams and her committee would have to dismiss most of it.
What was perhaps most surprising was how glibly Bhoopchand glossed over glaring contradictions in his own arguments. Most of the evidence presented by the HPCSA’s witnesses related to adult, not infant, nutrition. Even the Vorster report, commissioned by the HPCSA’s Fourth Preliminary Committee of Inquiry and used to charge Noakes, was based on evidence related to adult nutrition. The Naudé review and the so-called UCT professors’ letter, both of which that committee relied on to make its decision, also looked at adult nutrition, and said nothing about infant nutrition. Bhoopchand himself, perhaps taking a cue from his witnesses, drew extensively on The Real Meal Revolution, which Noakes had co-authored. This despite the fact that the book deals with adult nutrition.
Bhoopchand also tried to dismiss Noakes’s evidence on the grounds that he had worn ‘two hats’, as both a factual and an expert witness in his own defence. Bhoopchand attempted to argue that this represented a conflict of interest. Adams and her committee should consider Noakes’s evidence through a ‘lens’, he said, to detect any bias. He further accused Noakes of being ‘evasive�
� and ‘untruthful’, and of contradicting his own evidence on the role of carbohydrates in the diet. Where he got that from is anyone’s guess. Aside from his about-turn on the benefits of high-carb diets in 2010, Noakes has made no material changes to his stance on carbohydrates since.
Perhaps unsurprisingly, Bhoopchand made it clear that it was not so much what Noakes had said in his tweet as what he did not say that led to his prosecution. Enter cereals as supposedly good first foods for babies. The fact that Noakes did not advocate cereals and starchy foods in his tweet went to the heart of the charge that his ‘advice’ was dangerous. Cereals and grains feature prominently in South Africa’s dietary guidelines for all ages, but no one was able to present any proof of their benefits during the hearing. On the contrary, Noakes and his witnesses provided compelling evidence that cereals and grains do more harm than good, and that the recommendation to base meals around them is the real ‘dangerous advice’.
Undeterred by yet another weakness in his case, Bhoopchand concluded his argument by saying that the HPCSA had proved the charge against Noakes on a ‘balance of probability’. He believed the committee would have to find the professor guilty of unprofessional conduct.
Van der Nest and Ramdass were up next. The eloquence with which they made their submissions contrasted starkly with Bhoopchand. At just over 42 000 words, their closing argument was elegant and succinct by comparison. With legal precision, they forensically eviscerated the HPCSA’s case, labelling it an ‘unprecedented prosecution and persecution of one of South Africa’s eminent scientists’ simply for his opinions on nutrition. Van der Nest argued that the HPCSA had shown bias and had treated Noakes unfairly and unjustly, with double standards and hypocrisy, from the outset. The HPCSA appeared to have issued its legal team with a ‘win at all costs’ order, he said. In altering the charge against Noakes to suit its crumbling case, the HPCSA had created ‘schizophrenic moments’. One example was the attempt to dismiss all the evidence that Noakes and his experts presented on the science for LCHF.
