DAA’s “Far Deeper Issues” revealed

“Looks to me like you’ve been stitched up.” This sentiment has been expressed more than once by people familiar with my case, including my lawyer.

 

I’m not saying that it’s true but it has certainly been my feeling. Now with the help of a legal perspective, I believe I’m better able to clarify what has happened.

 

This clarification is necessary I believe, in no small part because of what I see as DAA’s continued undermining of my professional competency/ character on social media, often by innuendo. DAA’s tweet from 25.8.15 could be seen as an example of this, by alluding to but not specifying, Far Deeper Issues  as reasons for my expulsion.

 

My Story To Date:

In July 2014 a competing dietitian lodged a complaint with the DAA and my employers.

 

The complaint was primarily that low carb diets, (such as those that I recommend to clients with type 2 diabetes and insulin resistance), are not evidence based.

 

In August 2014, sometime after this complaint was lodged, the complainant forwarded a letter to DAA from a disgruntled client. DAA looked at my website, and I assume became aware of my criticisms of current DAA guidelines their diet advice with respect to cutting carbsExaminer, and MindFood. Something seems to be missing here Jen?

 

In September 2014, I received a letter from DAA asking me to answer two main issues.

These were:

  • “Your recommendation of a very low carbohydrate diet for type 2 diabetes management being inconsistent with Evidence Based Practice.”
  • “The patient letter indicates that you dismissed previous evidence based advice given to this patient and provided contradictory advice, resulting in a disgruntled consumer.” (Note: this was not part of the complaint received by DAA from Dietitian X)

 

I gave full and comprehensive answers to these issues (Provide link or append original response to DAA) and followed up with more details when asked.

 

I received a letter from DAA in April 2015 stating that the DAA board had upheld the complaint from Dietitian X, that the matter constituted a breach of the Code of Conduct and expelled me from the association. The notification contained no supporting detail just the bare statement of expulsion.

 

At the time I posted a blog saying that DAA had expelled me because of the use of low carbohydrate diets in diabetes management.  This prompted an interesting response from the DAA. An unidentified person from the National Office emailed to me by, claiming that the reasons for my expulsion were related to professional competency and not my dietary advice.

 

I was surprised to receive this letter. The complaint from Dietitian X primarily concerned my diet approach, specifically that low carbohydrate diets were not evidence based.  And the DAA upheld this complaint and I quote:

 

“Re:  complaint by Dietitian X”

“The Board resolved:

That the complaint against Jennifer Forman (Elliott) is upheld.”

 

I posted that if DAA were now suggesting that there was must obviously be another complaint relied on to expel me which resulted in my expulsion and then it would seem that, as I had no knowledge of this new issue, I felt that I had not been provided with even a basic level of procedural fairness/natural justice.

 

This generated some interest on social media, where DAA gave alternate reasons for my dismissal, saying or implying that it was was related to professional competence (George) (DAA tweet)) and non-engagement in the process ( must attend hearing) (What if I tell you….). None of this went down well with the public (Dr Halberg) (good call). DAA then said that the details were confidential (have a nice day) (was this damage controlor what?)

 

Sometime after these tweets were posted, the DAA seemed to change their mind about their position on confidentiality and sent me an unsolicited letter “suggesting” that they are within their rights to make the details of my case public (i.e. the DAA could tell all) Do you think there could be a hint of a threat here?

 

Even though I found this letter threatening and intimidating, I also thought “excellent idea; now we will get to the truth”. Unfortunately DAA did not follow through as nothing more was said by them.

 

Lack of transparency

DAA provided my employers and myself with a simple statement of their findings (you’re expelled) (she’s expelled); primarily that I had breached the Code of Conduct and was guilty of professional misconduct.

 

Jen, From the paragraph below I gather you received no details of what misconduct they are accusing you of, right? However later on you detail and respond to the issues the DAA consider represent “misconduct”. This may be considered by some to be a contradiction and lose you support????

 

No details were given of how the conclusions were reached, nor was I given clarification of the exact basis of the professional misconduct finding. The two options were: that I was guilty of “a substantial or consistent failure to reach and maintain a reasonable standard of competence and diligence” and/or that my conduct meant that I was not “a fit and proper person to continue to be a member of the Association and engage in Dietetic practice”.

Professional misconduct is a serious offence and must be extreme to result in de-registration and lifetime ban of a practitioner. It generally involves the potential of harm to the public, negligence and/or unlawful activity.  No such accusations have been brought against me; the complaint was about LC diets, with DAA’s addition of the experience of a disgruntled client.

 

Are these the Do you share the view that there are: “Far deeper issues” responsible for my expulsion from the DAA?

I would end my first post on this high note and revise the material from here on as it seems to be contradictory to some extent. Here you reveal details of DAA’s accusations that could be construed to be “the exact basis of the professional misconduct” you denied receiving in the preceding paragraph where you said: “No details were given of how the conclusions were reached”.

 

From here on I would suggest you commence a second post with the preamble to the effect that:

 

At a later stage in my communication with the DAA they provided the following explanation to their verdict of “Professional Misconduct”.

 

These are apparently the DAA’s grounds for such a harsh finding ruling resulting in the loss of my employment and income?

 

On reflection I still find this hard to believe that the following issues constituted the grounds for DAA’s finding of “professional misconduct” and am remain prepared to be corrected by DAA if I’ve made a mistake in my interpretation of events. The responses given below represent the process I followed in this matter:

 

Accusation 1: There was a lack of documented diet history.

Prior to a consultation, potential clients provide a written record of their usual dietary intake; it is therefore rarely necessary to repeat this in person.

 

Accusation 2:  That I recommended a generic, non-personalized meal plan without a rationale.

Is DAA saying that I suggested the CSIRO Wellbeing diet for a trial period on a whim? If a client who consults me for diet advice fits the diagnostic criteria of Metabolic Syndrome, there is a sound scientific basis as to why a lower carb eating plan is appropriate. I have studied the science behind this, written a well-referenced book about it, been invited to explain my approach to doctors and diabetes educators and advised on and observed the results of this way of eating for 100s of clients. I have even been on public TV without so much as a comment from the DAA.

I have never found it necessary to remind myself in writing why I am recommending a lower carb approach.

 

My notes do not convey the time taken to explain the rationale of why a reduced carb intake is the approach of choice for a person with high BGLs. This explanation was provided to DAA in my initial answers to the complaint.

 

I assume that for many clinicians like myself, except perhaps a new graduate who may be under supervision (and who DAA appears to be comparing me with), notes will always be a snapshot and truncated version of consultations. Some of the things that are done as a matter of course, which would include explanations of dietary approaches, would not be recorded in great detail (or at all) in notes. The above makes for difficult reading Jen and I am not quite sure of your point here

 

Accusation 3:   That I incorrectly interpreted biochemistry.

I recorded available biochemistry but no interpretation of these results was documented.

 

Accusation 4:   That I did not document an assessment of the client’s nutritional needs.

In general, the main nutritional need of a client who presents with features of Met Syn and with clear evidence of poor glycaemic control is a reduction in their intake of carbohydrate. Even though detailed evidence for this assessment is not put in writing each time I see a client, it’s covered when I write my usual: “Features of Met Syn (specified), therefore likely to be IR. Explained pathways of carb metabolism and rationale for reduced carb intake and regular exercise.”

 

Accusation 5:  That my notes on this client “did not include an assessment of her previous dietary knowledge, past experience with dietary interventions and her expectations from the dietary counselling I was providing as would be expected from an entry level dietitian”

Firstly, with 35 years experience, I would have thought I’d gone past the entry level mark but if that is DAA’s benchmark, let’s take it further.

 

Maybe I should have written something along the lines of the following comments in my notes for each of the hundreds of clients with diabetes who have consulted me over the years and have previously been instructed in the conventional diet approach:

 

  1. a) Assessment of previous dietary knowledge:

“Client has understood and followed the advice given by the Australian Diabetes Council/ Diabetes Australia/ local diabetes group etc, which recommend a low saturated fat/ low GI diet, with an even spread of carbohydrate over the day. My assessment of this advice is that such a diet is likely to ensure the client’s BGLs will continue to remain high, requiring an increasing amount of diabetes medication to control the resulting hyperglycaemia and predisposing the client to diabetic complications such as retinopathy, CHD, neuropathy and kidney failure.”

 

  1. b) Past experience with dietary interventions:

I could also have written something like this 100’s of times in clients’ notes:

“Previous dietary interventions appear to have been successful in one sense, in that the client’s reported usual diet contains many lower fat alternatives, mainly low GI options and carbs are spread evenly over the day.

 

My assessment is that conventional diet advice has not been spectacularly successful in another sense, evidenced by sub-optimal glycaemic control, weight issues, excessive hunger, tiredness, mood swings and the need for increasing amounts of medications to try and manage high BGLs.”

Maybe such documentation would satisfy DAA’s criteria of acceptable record keeping but I know at least one of my managers would have told me off for being a smart arse.

 

The simple point appears to be that the DAA apparently doesn’t like the way I kept my notes; at least on this one client, as it seems that is all they went by.

 

The question in my mind is why DAA, a self regulated professional association thinks it’s role is to assess my notes at all? In the workplace it is the responsibility of managers to assess all aspects of clinicians work via regular Professional Development Plans. These have been carried out over the last 25 years, with hundreds of my records available for scrutiny. For my last PDP it was suggested that I not abbreviate so much to make it easier for others to read; I was not accused of professional misconduct for not providing details DAA expects of an entry level dietitian.

 

Accusation 6:  That they found no evidence that I understood how to critically appraise scientific evidence and apply evidence based practice.                                                 

I would have to assume that my initial responses to the complaint, which provided this information, were ignored, not read or not understood.

 

Accusation 7:  That my social media activity did not demonstrate professional and ethical behavior.

No details were given for this and the naughtiest thing I remember writing on FB is that sometimes I’m embarrassed to say that I’m a dietitian. That hasn’t changed and if asked, I now say that I’m a nutritionist.

 

These are apparently my breaches of DAA’s Code of Conduct and are the “Far Deeper Issues” on which I was found guilty of professional misconduct, but for good measure DAA added two more things they didn’t like:

 

  • No verifiable evidence of on-going education

I have written and published a well-referenced book on the management of type 2 diabetes and metabolic syndrome Baby boomers, Bellies and Blood Sugars and had an article published in a peer reviewed journal in 2014 Flaws, Fallacies and Facts: Reviewing the Early History of the Lipid and Diet/Heart Hypotheses. These can be verified.

 

  1. Non-engagement in a disciplinary process.

DAA has indicated that expulsion is not taken lightly and that it only occurs with non-engagement in the process and/or when there is significant evidence of poor or dangerous practice.

Is the DAA really saying that a reason for dismissal was all about “not doing exactly what their officers tell you?”

 

Do they just make this shit up these rules as the go along because I cannot find mention of such a condition in their constitution? As I read it the constitution states:

 

  • FAILURE TO ENGAGE Jen please check this section against the constitution and correct where necessary?

22.1 If the Respondent fails to comply with any requests made by the Chief Executive Officer or the Hearing and Assessment Panel under this Bylaw, then the Chief Executive Officer may serve the Respondent with a written notice:

22.1.1 particularises the request which has been not been complied with by the Respondent;

22.1.2 advises the Respondent that their failure to comply is a breach of their undertakings as a member of the DAA / nonmember Accredited Practising Dietitians;

22.1.3 advises the Respondent that they have 14 days from the date the notice was served to rectify the breach; and

22.1.4 advises the Respondent that failure to rectify the breach within the time allowed will result in immediate suspension of their APD status until they rectify the breach. 

 

In my case, I fully engaged in the process until the point that I realised I was facing a kangaroo court. This is the point at which DAA refused to answer my very reasonable questions and instead responded to my letter with the suggestion that I re-read the Complaints and Disciplinary By-Law.

 

As for significant evidence of poor or dangerous practice …….. I don’t know what to say.

 

Except this: I have used a lower carb approach for people with diabetes and insulin resistance for over 10 years. The reality of my working life was that I had the support of GPs who referred their clients to me because of the diet approach I used and the success that many clients experienced; participation in regular PDPs over the years with my managers to assess all aspects of my clinical practice and always positive feed-back from client satisfaction surveys . My manager’s conclusion to one such survey was this:

The most outstanding part of the survey was the client’s comments on the level of understanding they now have about their dietary concerns, meal planning and how well this was communicated to them. There were also comments on the holistic approach Jennifer uses and how at ease they felt with her. The comments indicate that the level of service was excellent and that they all felt motivated to change their eating habits.

 

These comments included the following:

Maintain the standard. This is the first time I have ever had a simple explanation of my problem and why I should have an eating plan. I was extremely impressed.

Any further assistance offered to Jennifer would be resources well used. Her empathy and practical knowledge are rare assets and we are very lucky to have them.

 

In addition, a previous complaint by a dietitian about my diet approach was lodged with DAA 8 years ago. Because I was not a member of DAA back then (thankfully), the investigation was carried out by my employer. The complaint was not substantiated and I could continue to practice.

 

A final word

I’m at a loss to see how the reason for my expulsion from membership is not directly related to my recommendation of a lower carb diet in the treatment of type 2 diabetes, despite denials from the DAA.

 

I base this on the following, after extensive discussions with my lawyer and others:

If you take what DAA have said publicly about dismissal not being about my diet approach and remove this as a reason, and as I immediately addressed the use of testimonials on my website, then:

 the investigation was solely about a letter from a patient (who I saw once for little over an hour), sent to another dietitian and expressing dissatisfaction with our interview

 what I said to her was directly related to the low carb issue – this issue therefore remains at the hub of what the DAA was investigating

However, if my dismissal is solely about the handling of that one patient then:

  • The DAA has therefore taken the most serious action that it can take (again, as stated in its own material) against a member, based on a letter of dissatisfaction from one person
  • That person did not come back to me having cancelled her next scheduled appointment so I was not able to assist her with any issues she may have had
  • I would imagine that the DAA would be aware of the number of patients I have seen over my career so believe the level of sanction is extraordinary. 
  • DAA references to “substantial or consistent failure to reach or maintain a reasonable standard of competence” and “Dismissal is very rare …significant evidence of poor or dangerous practice”; how can this be found on the basis of one person who was “disgruntled” – but obviously not in any physical danger?

 

I would like to see an inquiry into DAA’s practices, including partnerships with the food industry, the manner in which disciplinary procedures are carried out and DAA’s roles in accreditation of university courses and in the updating of the 2013 Australian Dietary Guidelines.

 

I believe there is an urgent need for AHPRA (Australian Health Practitioner Regulatory Association) to take over the registration of dietitians, because despite DAA equating its complaints procedures with those of AHPRA, there are significant differences.

 

AHPRA: When we take action about practitioners, we use the minimum regulatory force to manage the risk posed by their practice, to protect the public. Our actions are designed to protect the public and not to punish practitioners.

 

 Also, it is my understanding that if a practitioner wants to have a decision by AHPRA reviewed, the matter can be referred to an outside agency, namely the National Health Practitioner Ombudsman.

 

In comparison, my understanding is that if a member of DAA wants to have a decision reviewed, it stays in-house ie DAA decides who the participants in the new review panel will be.

Or if they can afford it, the member may choose to take legal action through the courts.

 

In it’s submission to the Australian Health Ministers’ Advisory Council (2011), DAA said that it, “…….does not seek to become a registered profession, as it has mechanisms …… similar to the AHPRA to provide public protection.”

Maybe they do, but who protects members from the DAA?

 

I think I’ll stop now, before I start banging my head against the wall.

 

What’s next?

I would be really interested in any comments and/or suggestions on how to proceed.

 

There’s a chance that a reversal of DAA’s decision could mean reinstatement in one of my former workplaces. If you think that DAA’s decision was questionable/ unfair, could I ask that you send such a message to DAA.

 

DAA’s email: nationaloffice@daa.asn.au

 

I would also appreciate it if you would cc me or post your comment here, so that there can be an independent record of correspondence.

 

My email: jennifer@babyboomersandbellies.com

 

Thank you for your support.

 

 

A very well prepared submission Jen! XX

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