By Marika Sboros
Prof Tim Noakes had no patient on Twitter and his tweet caused no harm to anyone. So, what did two days of heated legal argument prove in the case against him?
It clearly is an “unprecedented prosecution” of a distinguished scientist, as Noakes’ legal team describes it. Even counsel for the Health Professions Council of SA (HPCSA) 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 health professionals on the whim of another? Certainly, few had heard of dietitian Claire Julsing Strydom before this case.
But is Strydom a malcontent, a disgruntled dietitian who went after Noakes because he disagreed with her? If not, why did the HPCSA take up her complaint that many consider frivolous? And why did it argue forcefully not just in Strydom’s corner but for all dietitians?
Why does the HPCSA believe that Noakes is wrong and Strydom is right? And that she has the right to freedom of expression but he does not?
Just as importantly, why has the HPCSA made a simple hearing over a single tweet into a full-blown trial? After all, its hearings are not supposed to be adversarial. Here’s Part 1 of a review of the case so far and what to expect next. In Part 2, we look at the verdict on 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. Adams 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, although he has not practised clinical medicine for more than 15 years.) Thus, there are three doctors on the panel.
Two members of the public must be on the panel. The choice of Adams as Chair is likely because of legal complexities involved. A legal assessor advises on procedural and legal matters but has no other input.
Therefore, all panel members are nominally independent. However, they also regularly work on HPCSA hearings.
And corruption is rife in the HPCSA as a government task team report showed in 2015. Noakes’ supporters have expressed concerns on social media that corrupt HPCSA officials will interfere. So far, I’ve seen nothing to suggest that Adams and the Committee will allow any interference from above.
However, Van der Nest argued that the HPCSA has shown significant bias against Noakes from the outset. It has marked its prosecution with “gross unfairness, injustice, double standards, hypocrisy and complete lack of merit”.
Van der Nest also argued that the HPCSA has fundamentally shifted the basis of the prosecution from where it began. This leaves the impression that HPCSA “believes it must secure a conviction against (Noakes) at all costs”.
And that after the HPCSA already announced wrongly to the world last year that it had found Noakes guilty. Adams responded with restrained fury to that announcement.
Click here to read: LEGAL TEAM FIGHTS ‘TRIAL BY AMBUSH’
The HPCSA has charged Noakes with “unprofessional conduct” for giving “unconventional advice to a breastfeeding mother on a social network (tweet)” (sic). That was a single tweet in February 2014 saying that good first foods for infant weaning are LCHF (low-carb, high-fat).
The HPCSA frequently amended the original wording of the charge. Yet its regulations don’t allow for amendments.
From the start, the HPCSA unambiguously built its case against Noakes 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 harmed.
Van der Nest argued that the HPCSA failed to prove all three grounds. Thereafter, it “changed tack” – which it isn’t allowed to do. Along the way, the HPCSA produced “schizophrenic moments”, Van der Nest said.
One schizophrenic moment was the doctor-patient relationship. After the HPCSA failed to prove the relationship, Bhoopchand argued that it did not need to prove one.
He also argued that the onus was on the defence to prove that the charge required a doctor-patient relationship. However, that position is not tenable. Raising a defence does not reverse onus. It does not excuse the prosecution from having to prove elements that support its case.
Van der Nest argued that the doctor-patient relationship thesis was crucial to the HPCSA’s case. It was also always “nonsense and guaranteed to fail”.
Its first witness, Strydom, conceded that there was no doctor-patient relationship. She only did so under vigorous cross-examination by Van der Nest. She realised that she was incriminating herself and Marlene Ellmer, the second dietitian who tweeted.
If it were her position that Leenstra was Noakes’ patient, it would necessarily follow that both she and Ellmer were also guilty of “supersession”. That’s the legal term for one health professional taking over another’s patient without permission.
That pointed to unfairness, Van der Nest argued. The HPCSA had chosen to prosecute only Noakes and not Strydom and Ellmer.
The HPCSA’s three expert witnesses also made claims on a doctor-patient relationship. They were North-West University nutrition professors Hester Vorster and Salome Kruger. Paediatrician Dr Ali Dhansay was the third. All failed to sustain their position on the relationship under cross-examination by Ramdass.
The HPCSA responded by calling a new witness, Stellenbosch University psychiatry professor Willie Pienaar. It called Pienaar specifically on the doctor-patient relationship.
Pienaar’s position also failed to stand up under cross-examination by Van der Nest and not just on the relationship. He also claimed that Noakes’ views on LCHF are “dangerous”. Van der Nest drily commented that Pienaar’s “petticoat” (of bias) was showing.
Pienaar had tried to prove a doctor-patient relationship, but “his evidence ultimately established the opposite”.
Van der Nest queried why the HPCSA had misinformed Pienaar 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’.
Which was more unethical, Van der Nest asked, to keep vital information from a witness or for Noakes to tweet information?
Noakes gave direct evidence that he did not intend a doctor-patient relationship. The HPCSA did not contest this, Van der Nest said. Thus, it left Noakes’ evidence unchallenged.
As well, the HPCSA did not call Leenstra as a witness. Van der Nest said that was a wise move. Leenstra would have denied that she was Noakes’ patient.
The HPCSA had tried to “force a relationship on two parties which they never intended”. It was “artificial and tortuous” to do so, Van der Nest argued. Without a doctor-patient relationship, Noakes had no ethical duty to Leenstra and the HPCSA had no case.
Leenstra would also have shown that she was just a listener in a public forum (Twitter) and Noakes was expressing a scientific opinion in that public forum. Therefore, his tweet was no different to expressing an opinion in a book or public lecture.
In another “schizophrenic moment”, the HPCSA claimed that Noakes was “unethical” for not answering Leenstra’s second tweet. However, it had claimed that Noakes was unethical for answering one tweet. Van der Nest asked how could Noakes also be unethical for not answering the second tweet?
He raised the issue 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”, those capitals are code for Strydom shouting at Noakes. She later tweeted that Noakes was giving “dangerous” advice.
Van der Nest called Strydom’s tweet “childlike and childish”. She was clearly tweeting in her personal capacity, not as a health professional. She was clearly derogatory about Noakes’ conduct and expertise. Strydom had breached the HPCSA’s code of conduct that forbids one health professional from denigrating another in public.
Yet the HPCSA did not charge her.
On February 6, 2014, Strydom lodged her complaint. Van der Nest argued that her letter of complaint spoke volumes, though not as she intended. It highlighted bias in the HPCSA’s prosecution from the outset.
Strydom started off saying: “I would like to file a report against Prof Tim Noakes. 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 went on to say: “I urge 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 say it’s clear that Strydom is doing all the complaining. The HPCSA would say that you are wrong.
Bhoopchand argued that ADSA (Association for Dietetics in SA) was the complainant. That’s clearly wrong.
Van der Nest argued that Strydom uses the personal pronoun “I” four times in her letter. She makes no mention of ADSA although she was president at the time.
Other evidence shows that Strydom tweeted from her personal profile, not ADSA’s. She also emailed her complaint from her personal address. And the HPCSA’s first correspondence to Noakes makes it clear that Strydom is the complainant.
Crucially, it makes no reference to ADSA.
HPCSA regulations preclude changing complainant’s name. It was evasive throughout 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. Both have attempted to distance themselves as complainants.
Interestingly, ADSA recently acquired a crisis management consultant, Neeran Naidoo. Naidoo is a former Woolworths communications executive.
Van der Nest argued that Strydom made assumptions on the strength of the single tweet, which the HPCSA accepted. Strydom claimed that she did not know Leenstra before the tweet. Yet she assumed that Leenstra had an infant that she was breastfeeding. Leenstra does not say that in her tweet.
Then there’s the document that ADSA’s current president, Maryke Gallagher, provided. The date is May 30, 2015. That’s more than a year after Strydom lodged the complaint. Gallagher and other ADSA executive members signed it. However, some signatures appear to be inserted electronically.
The wording is also highly ambiguous. The document appears to have been drafted after the fact to attempt to ratify Strydom’s conduct.
Therefore, the only inference any reasonable person can draw is that Strydom is the complainant. And always was.
- Part 2: Who is really giving dangerous, unscientific advice?
- Click here for full coverage of The Noakes Trial
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