By Marika Sboros
South African scientist Prof Tim Noakes could know by the end of March if his regulatory body will fail in its last-ditch attempt to find him guilty. And this time round, global medical and scientific communities are watching.
The HPCSA has appealed its Professional Conduct Committee’s comprehensive not-guilty verdict for Noakes in April 2017. The charge was unprofessional conduct for a single tweet in 2014. In it, he said that good first foods for infant weaning are LCHF.
Noakes’s lawyers have filed a cross-appeal including for costs. Their grounds are that the HPCSA has acted in bad faith throughout. They also say that the HPCSA is a statutory body and therefore the law offers it no protection against “bad behaviour”.
The appeal was held in Pretoria from February 21 to 23 before a committee that the HPCSA appointed. The Committee Chair, advocate Justice Mogotsi, reserved his ruling till “some time before the end of March”.
For the defence, advocate Michael van der Nest (SC) covered the law and ethics as they applied to the case against Noakes. Advocate Dr Ravin “Rocky” Ramdass looked at the law and scientific claims made against him.
From the HPCSA’s side, it was Groundhog Day. Advocate, Ajay Bhoopchand gave nothing new in grounds for appeal. Instead, he claimed that the Professional Conduct Committee had erred on “matter of law and facts”. Therefore, the HPCSA believed that its Appeal Committee would come to a “different decision”.
HPCSA Appeal Grounds
In his appeal grounds, Bhoopchand repeated the pillars of his claims that Noakes:
- Had a doctor-patient relationship with the breast-feeding mother on Twitter;
- Acted as a medical doctor, not a scientist;
- Gave medical advice without consulting the mother or her infant;
- Gave advice that was “unconventional” because it was not evidence-based and went against the country’s dietary guidelines;
The problem for Bhoopchand was that HPCSA failed to prove all those pillars. And with that, he fell straight down legal rabbit holes
Bhoopchand claimed that the onus was no longer on the HPCSA to prove a doctor-patient relationship. He said that the Professional Conduct Committee had made a “spectacular error” in finding that the HPCSA had onus.
His reasoning, as he later gave it, was that a doctor-patient relationship was immaterial or irrelevant. It was also irrelevant whether Noakes gave advice or information. And he claimed that the absence of a patient or victim, in this case, was no proof that Noakes did not act as a medical doctor.
He also, and somewhat bizarrely, I though, claimed that if the defence had only made it clear from the outset that there was no doctor-patient relationship, the case would have terminated.
Bhoopchand’s focus on a doctor-patient relationship led Appeal Chair advocate Justice Mogotsi to ask why it was even in the charge. After all, Mogotsi noted, breastfeeding mother, (Pippa Leenstra, the putative patient in this case) had not lodged a complaint or testified.
Keto fears resurge
And again, ketogenic diets loomed large in the HPCSA’s case against Noakes. Yet, as the defence once again noted, the charge against him says nothing about advising a ketogenic diet.
Strydom was president of the Association for Dietetics in South Africa (ADSA) when she lodged the complaint against Noakes that set off the trial against him. She had claimed concern that the public could have interpreted Noakes’s tweet to mean a ketogenic diet. She described it as “unprecedented” advice to put a healthy baby on a ketogenic diet. (Noakes had tweeted LCHF foods, not a ketogenic diet.)
Ramdass highlighted extensive evidence of ignorance on the part of Strydom and all the HPCSA’s experts about ketosis. All appeared to conflate it with ketoacidosis. Ketosis is a perfectly natural bodily state. Ketoacidosis is a rare, potentially fatal and seen mostly in type 1 diabetics.
All also showed ignorance about the vital role that ketones play for infant brain development and growth, he said.
Ramdass took pains to emphasise that all the HPCSA’s experts had conceded that LCHF aligns closely with South Africa’s paediatric guidelines. Thus, if Noakes’s tweet really were wrong, then the paediatric guidelines were also wrong.
Still, Bhoopchand insisted that the potential for harm from Noakes’s tweet was there. “We bore onus to show potential for harm and we did,” Bhoopchand claimed.
Muddled public health messages
Even if the Appeal Committee accepted that Noakes’s tweet was not medical advice, it was a “public health message”, Boopchand now claimed. (Mogotsi commented that Leenstra had made it clear that Noakes’s tweet was not advice. In a later tweet, she wrote: “Too much conflicting information.”)
Bhoopchand claimed that the millions, possibly even billions, of Twitter users around the world could have read Noakes’ tweet. And the “message” he gave on it was “wrong”.
In effect, Bhoopchand attempted to argue that anyone who read Noakes’s tweet could have been his “patient”. And that a public health message was not that different from “advice”.
Bhoopchand considered the suggestion that the aspect of “public concern” was not part of the original charge to be “inexplicable”.
Shifting onus of proof
And just as he did in his closing argument, Bhoopchand compared Noakes’s case to “Dr Death”, apartheid era cardiologist Dr Wouter Basson. As a more recent example, he cited the Esidimeni hospital scandal. Van der Nest responded just as swiftly. Both comparisons were “wholly inappropriate”, he said. (In closing argument he called the Basson comparison “insulting”.)
In both cases, people died, Van der Nest said. No one died as a result of Noakes’s tweet. And despite claims to the contrary, the HPCSA had not proved even the potential for harm.
The HPCSA was just seeking to avoid the consequences of failing to prove the foundation of its case. It had made the doctor-patient relationship foundational to the charge against him.
“Once you make something foundational, the onus is on you to prove it,” Van der Nest said.
Strydom and all the HPCSA’s expert witnesses had conceded under cross-examination that there was no such relationship.
Once the HPCSA failed to prove a foundational claim, “that should have been it”. It should have accepted that it had no case, Van der Nest said.
Grounds for cross-appeal
Instead, it carried on prosecuting Noakes. It was thoroughly disingenuous to suggest that if Noakes had pointed out the HPCSA’s weaknesses in its case earlier, that it would have terminated the case.
In grounds for cross-appeal, Van der Nest agreed that HPCSA rules do not make explicit provision for cost awards in disciplinary hearings. However, neither the Health Professions Act nor the rules preclude the Professional Conduct Committee from awarding costs.
He also argued that there was uncontested evidence that HPCSA had acted in bad faith throughout. It had “no sustainable case” against Noakes from the outset, he said. And as a statutory body, the HPCSA did not enjoy legal protection from “manifestly bad behaviour”.
The list of that bad behaviour was long and made a “very poor picture”. It began with the HPCSA’s Preliminary Committee of Inquiry and was just “the tip of a very big iceberg”.
The Preliminary Inquiry Committee chair was Wits University head of medical bioethics Prof Amaboo “Ames” Dhai. Uncontested evidence on the record shows that Dhai and a committee member indulged in “highly irregular” behaviour.
Van der Nest said the HPCSA should also have seen that Strydom was a “disgruntled dietitian“. She saw Noakes as a threat to her livelihood, he said. (Strydom is a dietitian in private practice. Thus, she has a business to protect.) She used his tweet as a pretext to get the HPCSA to prosecute him.
Celebrity on trial
In her letter of complaint to the HPCSA, Strydom called Noakes a “celebrity”. Van der Nest said that Noakes is not a celebrity but rather is a world-renowned scientist.
His world ranking as a scientist by the National Research Foundation is A1 for authority in both exercise science and nutrition.
Yet the HPCSA consistently ignored Noakes’s expertise in nutrition. Ramdass called it “unfathomable” to claim that Noakes was not qualified to give dietary advice.
Van der Nest also noted that none of the HPCSA’s experts against Noakes came close to Noakes’s ranking. NorthWest University nutrition professors Hester Vorster has a B1 rating and Salome Kruger a C1. Paediatrician Prof Ali Dhansay, Stellenbosch University psychiatry professor Willie Pienaar and Strydom have no rating at all.
He pointed out that the HPCSA had not challenged any of Noakes’s evidence or that of his four experts. It was trying to avoid the consequences by “shifting ground” again. It moved from claiming harm from Noakes’s tweet. And the HPCSA now claimed that anyone reading it could have misconstrued it to mean a ketogenic diet.
The HPCSA had not charged Noakes with giving vague, ambiguous, uncertain advice. That was a “Johnny-come-lately” addition to the charge.
“The charge was specific,” Van der Nest said. “As a prosecutor, if you charge someone with giving unconventional advice, you must be able to say why it is unconventional
HPCSA ‘loses its way’
He also questioned why the HPCSA had used the word “unconventional” in the charge.
“Since when do we charge people for being unconventional?” Van der Nest asked. “To move forward, science needs scientists who are unconventional.”
For the Appeal Committee to make a decision reversing the not guilty verdict, it would have to make a scientific finding that Noakes was wrong about LCHF, he said. The Appeal Committee was empowered to make that finding. However, it did not have all the science before it, to make the finding.
The HPCSA had “hopelessly lost its way” in prosecuting Noakes, he said. There were also constitutional implications. The Constitution guaranteed the right to freedom of expression, including for scientists. Thus, this was an issue not just for Noakes, but for millions in South Africa who express their opinions, Van der Nest said.
Especially worrying was how Strydom managed to get “the might and machinery of a state body” to prosecute Noakes.
The defence’s argument for costs was straightforward, he said. Thus, if the HPCSA had exercised its statutory function fairly, it would not have to pay costs.
“If you litigate against a member without good reason, the (Health Professions Act – under which the HPCSA is regulated) does not limit the Professional Conduct Committee’s ability to make a cost order.”
Therefore, the Professional Conduct Committee erred in not awarding Noakes costs as part of its not-guilty finding.