By Marika Sboros
Prof Tim Noakes has been found not guilty of unprofessional conduct for a single tweet in February 2014 saying that good first foods for infants are low-carb, high-fat (LCHF). When Pretoria advocate Joan Adams announced the verdict yesterday, the hearing erupted into applause and cheers.
(Noakes is pictured above with one of his legal team, Johannesburg advocate Michael van der Nest, SC.)
Adams chaired the Professional Conduct Committee that the Health Professions Council of South Africa (HPCSA) sets up to hear disciplinary hearing on charges of this nature. Thus, she effectively acted as the “judge”and her committee as the “jury” in this case. All set up by the HPCSA.
She said that her five-member committee had ruled four to one in Noakes’ favour.
In reading the ruling, Adams said that the HPCSA had not proved any of the main pillars of the case against Noakes on a balance of probabilities. It had also not proven any harm from his tweet or that he had breached any norms or standards of the medical profession.
The ruling could not have gone more in Noakes’ favour if he had scripted it himself.
How it all began
The hearing against him arose after Johannesburg dietitian Claire Julsing Strydom reported him to the HPCSA for the tweet.
The HPCSA then charged Noakes on three major counts. That he:
- Had a doctor-patient relationship with the breastfeeding mother (Pippa Leenstra)
- Gave medical advice, not information
- The medical advice was unconventional, as it was not evidence-based. Thus, it could have been dangerous. (Strydom had claimed that his tweet was potentially life-threatening.)
Adams was critical, at times, scathing of the HPCSA. She said that her Committee “was not a rubber stamp” and would not “set nutrition guidelines for the whole world”. Her ruling covered 10 points of the pillars of the charge against him.
Click here for a full transcript of her ruling.
Absence of guidelines for conduct on social media
Crucially, Adams pointed out that HPCSA had no guidelines for conduct of registered practitioners on social media. Therefore, it could not prove that Noakes had breached them.
HPCSA advocate Ajay Bhoopchand had referred to the absence of guidelines as the “elephant in the room“. However, Bhoopchand also tried arguing that a liberal interpretation of the guidelines could include conduct on social media. Adams and her committee rejected the argument.
Adams said that the case was the first of its kind involving the HPCSA and social media. It was also one of the first of its kind in South Africa involving social media in general.
HPCSA legislation, regulations, ethical rules or guidelines did not directly regulate the use of various platforms of social media by healthcare professionals, she said.
“As an aside the HPCSA would appear to be seriously lacking in this regard.”
No doctor-patient relationship
The HPCSA had also not proved a doctor-patient relationship. On the contrary, “circumstantial evidence showed the opposite”, Adams said. The HPCSA had also not proved that Noakes was guilty of misconduct “independent of the relationship”.
Leenstra had said nothing in her tweet to indicate that she wanted to be or was Noakes’ patient. The HPCSA could not infer that “she was hoping for a free medical consultation”, Adams said.
The HPCSA had also not proved that Noakes was acting in his capacity as a doctor. Instead, the evidence was that he acted as an author and scientist.
Most people at the HPCSA and its Medical and Dental Board were well-aware that Noakes was a scientist, author and LCHF proponent, she said. “Perhaps (they would have known or assumed) that he was acting in his capacity as such due to his public status.”
The HPCSA had also not proved that Noakes had given Leenstra medical advice or medical nutrition therapy rather than information. The Committee agreed with the HPCSA legal team that there was ambiguity in Noakes’ quote. However, at worst, it was only “confusing and unclear”.
Adams repeatedly referred to Leenstra as a “consumer of information”, not Noakes’ patient. She said that Leenstra had asked an open-ended, general question.
Click here to read: Did disgruntled dietitians set him up?
Hindsight not allowed
The HPCSA had made many assumptions on how Leenstra would have interpreted Noakes’ tweet, Adams said. However, this was “not an ex post facto” enquiry. The HPCSA could not make assumptions based on hindsight. Also, Leenstra had not testified. Therefore, “we will never know”, Adams said.
The HPCSA had failed to show that merely by answering Leenstra’s tweet, Noakes had performed any “affirmative action” as a medical doctor. There was no indication that Leenstra and her baby required medical services. There was also no reason to assume that Leenstra may have had a medical emergency with her infant.
Although Leenstra referred to “worry” about “baby winds”, one could not assume that she was “worried” in the strict sense of the word.
Baby winds ‘not an illness’
Worry is “a subjective state of mind”, Adams said, and “baby winds are not an illness”. It was also safe to assume that Leenstra “would not have wasted time tweeting if her baby really were seriously ill”. Contrary to Bhoopshand’s assertions, if Leenstra was so “worried” about her baby’s condition, she would not have waited three days for a response to her alleged cry for help, Adams said.
The HPCSA should have been cautious about assuming that Leenstra was vulnerable, ignorant and did not understand the basics of LCHF. The same applied to anyone else who read Noakes’ tweet.
It was not reasonable to assume that most users (on social media) were “ignorant, vulnerable and in need of the protection of others”.
“The public is far more enlightened and informed than in the past,” Adams said.
She also said that the law “does not and cannot protect every user in cyberspace from themselves”. Those who randomly followed any online advice without context did so “at their own peril”.
Unconventional versus unprofessional
Adams said that “unconventional” does not equal unprofessional, “per se”. Context and facts of the matter were important, she said. Crucially, the Committee found that the HPCSA had not proved that Noakes’ tweet was unconventional, not evidence-based or dangerous. On the contrary, based on the facts, Adams said that the HPCSA had not proven harm or potential harm. It had not proved that Noakes’ tweet was dangerous or life-threatening, as Strydom had claimed.
LCHF is the acronym for low-carb, not no-carb, Adams said. Thus, it was not reasonable to assume that Leenstra might have interpreted LCHF as a ketogenic diet. “It is difficult to fathom how anyone can read Noakes’s tweet or his letter of reply in context to mean or intend to convey a no-carbohydrate diet for babies.”
The Committee also disagreed with the HPCSA’s claim that Noakes could not be an expert witness in his own defence. The HPCSA had also not proved that the case was about infant, not adult, nutrition.
Adams said that her Committee would not rule on the credibility of any of the expert witnesses. However, the Committee accepted that all of Noakes’ witnesses had given evidence that had “logic”
No breastfeeding advice
She dismissed out of hand the HPCSA’s claim that Noakes was advising Leenstra to stop breastfeeding. There was nothing to suggest that he was advocating immediate cessation of breastfeeding. He was also not attempting to dilute the message of the benefits of breastfeeding. On the contrary, Noakes was well-known for his support for breastfeeding.
Interestingly, Adams made the point that Strydom had tweeted to Noakes from her personal Twitter account. Adams made no mention of ADSA as the complainant.
The HPCSA has gone to great lengths to obscure Strydom’s role as complainant. That’s likely because of the legal implications for Strydom. Those are becoming clearer now that the ruling has gone in Noakes’ favour.
The ruling has vindicated Noakes. However, the HPCSA has 21 days to decide whether or not it will appeal the Committee’s decision. ADSA president Maryke Gallagher said in a TV interview after the ruling that ADSA won’t be changing its advice to the public anytime soon.
Battle won, war goes on
Noakes said that the outcome of the case “could not have been better”. However, he said that he looked forward to the day when the HPCSA investigated the veracity of the “evidence-base” on which universities train dietitians.
He would also like to see the HPCSA investigate the effects of orthodox dietitians’ advice on the obesity and diabetes epidemics. These epidemics “are crippling the health of populations in South Africa and elsewhere”, he said.
Clearly, while he has won an important battle, the nutrition war in South Africa goes on.
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