By Marika Sboros
Prof Tim Noakes did not have a doctor-patient relationship with a breastfeeding mother on Twitter. His tweet caused no harm to her or anyone else, his lawyers have said. The information he tweeted was neither dangerous nor life-threatening.
But what have two days of heated legal argument really proved in the case against him?
His legal team has said that the trial was an “unprecedented prosecution” of a distinguished scientist. It was a trial simply for his opinions on nutrition. Attorneys for the Health Professions Council of SA (HPCSA) even acknowledged Noakes as “an extraordinary South African”.
But has the HPCSA really done the unthinkable? Has it prosecuted and persecuted one of its most eminent MD-scientist members on a dietitian’s whim?
Certainly, few had heard of Johannesburg dietitian Claire Julsing Strydom before the “Nutrition Trial of the 21st Century”. That’s what the public dubbed the HPCSA’s hearing against Noakes. But is Strydom really just a disgruntled dietitian who went after Noakes just because he disagreed with her?
Why the preferential treatment?
And if so, why did the HPCSA take up her complaint that many doctors and dietitians consider frivolous. Even vexatious? Why did the HPCSA argue for Strydom and on behalf of all dietitians in South Africa?
And why did the HPCSA believe from the outset that Noakes’ opinions were wrong. Why did it believe that Strydom’s opinions were right? And that she had the right to freedom of expression but he did not?
Just as importantly, why did the HPCSA make a simple hearing over a single tweet into a full-blown trial? After all, its hearings are not supposed to be adversarial.
This is Part 1 of a review of the case so far. In Part 2 tomorrow, I look at who really dishes up dangerous advice.
Lawyers for both sides gave closing argument on April 4 and 5, 2017. Counsel Dr Ajay Bhoopchand argued for the HPCSA. Senior counsel Michael Van der Nest and counsel Dr Ravin “Rocky” Ramdass argued for Noakes.
The HPCSA’s Professional Conduct Committee is the “jury” in this case. Committee Chair is Pretoria advocate Joan Adams is the “judge” and will rule on April 21, 2017.
The Committee comprises five members. HPCSA regulations require that three must be Noakes’ peers. Noakes is also a medical doctor but has not practised clinical medicine for 15 years. Thus, there are three doctors on the panel.
A biased jury?
Two members of the public must be on the panel. The choice of Adams as Chair is likely because of the legal complexities involved. A legal assessor advises on procedural and legal matters but has no other input. All panel members are meant to be independent. However, they also regularly work on HPCSA hearings. Many depend on the income from that.
Corruption is also rife in the HPCSA as a government task team report showed in 2015. Noakes’ supporters have concerns that corrupt HPCSA officials will interfere in this case. So far, I’ve seen nothing to suggest that Adams will allow any interference from above.
Van der Nest has argued that the HPCSA showed significant bias against Noakes from the outset. It had marked its prosecution with “gross unfairness, injustice, double standards, hypocrisy”, he said. Its case was without merit throughout, he said.
Van der Nest also argued that the HPCSA had fundamentally shifted the basis of it prosecution from where it began. And where it should legally have stayed. This left the impression that HPCSA “believes it must secure a conviction against (Noakes) at all costs”.
On bias, he pointed to a premature HPCSA public announcement last year that Noakes was guilty. Adams had responded with relatively restrained fury to that announcement.
Click here to read: Legal time fighting ‘trial by ambush’
Shaky legal grounds
The HPCSA has also frequently amended the original wording of the charge. Yet its regulations don’t allow for amendments.
From the start, the HPCSA built its case unambiguously on three grounds. These are that he:
- Had a doctor-patient relationship with the breastfeeding mother (Pippa Leenstra);
- Breached the medical professions’ norms and standards on social media;
- Gave “unconventional” medical “advice” that was not evidence- based. Therefore, the “advice” was dangerous and could have caused harm.
Van der Nest argued that the HPCSA failed to prove all three grounds. Thereafter, it “changed tack”, he said. In other words, it moved the legal goalposts – another legal irregularity.
Along the way, the HPCSA produced “schizophrenic moments”, Van der Nest said. One such moment was over the doctor-patient relationship. After the HPCSA failed to prove the relationship, Bhoopchand argued that it did not need to prove one.
Bhoopchand also now argued that the onus was on the defence to prove that the charge required a doctor-patient relationship.
That position appear highly untenable, legally speaking.
On whose head does onus rest?
As Van der Nest and outside legal experts agree, raising a new defence does not reverse onus. It also does not excuse the prosecution from having to prove elements of its case.
Van der Nest argued that the doctor-patient relationship was crucial to the HPCSA’s case. And that it was always “nonsense and guaranteed to fail”.
Its first witness, Strydom, had conceded under cross-examination that there was no doctor-patient relationship. She realised that by claiming one, she had implicated herself and dietitian Marlene Ellmer, who also tweeted.
If Leenstra were Noakes’ patient, then both she and Ellmer were guilty of “supersession”, Van der Nest said. Supersession is the legal term for one health professional taking over another’s patient without permission.
That pointed to unfairness, Van der Nest argued. The HPCSA appeared to believe that Noakes had broken the same rule that Strydom and Ellmer had broken. Yet it had chosen to prosecute only him.
Its three expert witnesses, North-West University nutrition professors Hester Vorster and Salome Kruger and paediatrician Ali Dhansay, all claimed a doctor-patient relationship. None was a specialist in medical ethics covering doctor-patient relationships. All failed to sustain that position under cross-examination by Ramdass.
A surprise witness
The HPCSA responded by calling a surprise witness, Stellenbosch University psychiatry professor Willie Pienaar. Pienaar has done some study of and lectures on medical ethics but is not a qualified ethicist.
His position on the doctor-patient relationship disintegrated quickly under cross-examination by Van der Nest. And not just on the relationship. Pienaar also claimed that Noakes’ views on LCHF were “dangerous”. He did so – unstrategically, in my opinion – despite not being called as a nutrition expert.
Noakes’ legal team held the same opinion. Van der Nest drily commented that Pienaar’s “petticoat” (of bias) was showing.
Thus, Pienaar tried hard and failed miserably to prove a doctor-patient relationship. “His evidence ultimately established the opposite”, said Van der Nest.
The HPCSA had also not informed Pienaar fully about the tweeted exchange. Pienaar did not know, for example, that there was more than one tweet in the conversation. He also did not know that Leenstra had rejected Noakes’ information in favour of the dietitians’ opinions.
Which was more unethical, Van der Nest asked: to keep vital information from a witness or for Noakes to tweet information?
Noakes testified that he did not intend a doctor-patient relationship. The HPCSA did not contest this, Van der Nest said. Thus, it had left Noakes’ evidence unchallenged.
The also HPCSA did not call Leenstra as a witness. Van der Nest said that was probably a wise move as Leenstra would likely have told the truth. She would have denied that Noakes had asked her or that she had agreed to be his patient.
The HPCSA had tried to “force a relationship on two parties which they never intended”, Van der Nest said. It was “artificial and tortuous” to do so, he argued. Absent a doctor-patient relationship, Noakes had no ethical duty to Leenstra and the HPCSA had no case, he said.
In another “schizophrenic moment”, the HPCSA claimed that Noakes was “unethical” for not answering Leenstra’s second tweet. However, it had also claimed that Noakes was unethical for answering the first tweet. How then, Van der Nest asked, could Noakes also be unethical for not answering the second?
He raised the issue of Strydom’s conduct during the tweeted exchange, including her punctuation. She tweeted that she was “HORRIFIED!!!”. “HOW CAN YOU GIVE ADVICE LIKE THIS???”. In Twitter “Netiquette”, capitals are code for shouting at Noakes. That’s conduct unbecoming of a professional on the social network. She had also later tweeted that Noakes was giving “dangerous” advice.
Van der Nest called Strydom’s tweets “childlike and childish”. She was clearly tweeting in her personal capacity, not as a health professional, he said. She was also clearly derogatory about Noakes’ conduct and expertise. Strydom had, therefore, breached the HPCSA’s code of conduct that forbids one health professional from denigrating another in public.
Yet the HPCSA did not charge her for breach of its rules.
On February 6, 2014, Strydom reported Noakes to the HPCSA. Van der Nest argued that her letter of complaint in reporting him spoke volumes, though not as she intended. It highlighted bias in the HPCSA’s prosecution from the outset, he said.
The perils of celebrity
He quoted verbatim from Strydom’s letter to the HPCSA. “I would like to file a report against Prof Tim Noakes,” she wrote. He is giving incorrect medical (sic) on Twitter that is not evidence based. I have attached the tweet where Prof Noakes advises a breastfeeding mother to wean her baby onto a low carbohydrate high-fat diet.”
She also urged the HPCSA “to please take urgent action against this type of misconduct as prof (sic) Noakes is a ‘celebrity’ in South Africa and the public does not have the knowledge to understand that the information he is advocating is not evidence based – it is especially dangerous to give this advice for infants and can potentially be life-threatening. I await your response.”
You might think it’s clear that Strydom was the one doing all the complaining. The HPCSA would say that you are wrong. Bhoopchand argued that ADSA (Association for Dietetics in SA) was the complainant from the outset.
Yet HPCSA regulations preclude changing the complainant’s name. Its legal department was evasive on when and why it changed the complainant from Strydom to ADSA.
To outsiders, that can seem a small point. Its legal and ethical consequences loom large for Strydom and ADSA. That’s likely why both Strydom and ADSA have attempted to distance themselves as complainants.
ADSA also recently acquired a “crisis management consultant”, Neeran Naidoo, a former Woolworths communications executive.
Infant v adult nutrition
Bhoopchand made frequent claims in his heads of argument, for which I could find no proof in the transcripts. One was that Noakes had changed his view on dietary carbohydrate while giving his evidence. Noakes has confirmed that he did not.
Van der Nest and Ramdass have also easily countered the argument that the case against Noakes was on infant nutrition only. They showed that the whole trial had been almost exclusively about adult nutrition
Interestingly, Bhoopchand focused his argument more on dietary carbohydrates, not fats. That pointed to a seismic, “schizophrenic” shift, as Van der Nest had described earlier shifts.
He said that the HPCSA had proved the charge against Noakes “on a balance of probability”. Thus, Adams should rule that he is guilty.
Bhoopchand dismissed defence claims of vested interests and conflicts of interest behind the prosecution. He described these as “wishy-washy conspiracy theories”.
Van der Nest has called the HPCSA’s case against Noakes a “world-first prosecution and persecution of a distinguished scientist simply for his opinions on nutrition”. He raised pertinent questions about Strydom’s conduct. Was she just a “disgruntled dietitian” who had it in for Noakes because LCHF was destroying her business? And why has the HPCSA prosecuted him on her “whim”?
All that remains now is to see which side’s argument holds more sway with the “jury” on April 21, 2017.
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