[2017] Lore of Nutrition: Challenging Conventional Dietary Beliefs

by Tim Noakes

  Bhoopchand denied any irregular conduct by Dhai and her fellow committee members. In effect, he argued that the committee could do as it pleased. By his reasoning, the committee was exempt from the principle of audi alteram partem. He also tried to have the file’s incriminating evidence struck from the record altogether, claiming that the HPCSA had ‘inadvertently’ handed the file over to the defence and that Noakes was therefore not entitled to its contents. Terblanche’s emails were ‘personal and private’, Bhoopchand said, before suggesting that the defence team had infringed Terblanche’s rights under the Protection of Personal Information Act (commonly known as PoPI) by releasing the contents ‘into the public sphere without his permission’.

  In response, Van der Nest was a legal juggernaut, thundering through Bhoopchand’s arguments. The HPCSA was ‘playing quick and loose’ with Noakes’s rights by sending him ‘from pillar to post’, he said. The suggestion that his only redress was a High Court action was ‘not only grossly unfair, but surprising’. There was nothing in law to suggest that Noakes should have made an application under PAIA in order to defend himself properly and fully.

  South Africa was a democracy with a Constitution that included the Promotion of Administrative Justice Act (PAJA), Van der Nest said.

  Legal experts say that PAJA seeks to make the executive (administration) of any statutory body effective and accountable to the public. When read with the Constitution, PAJA encompasses and embraces the Batho Pele (‘People First’) principles, which require public servants to deliver good service to the public. Lawmakers enacted PAJA specifically to promote and protect the rights of all South Africans to administrative action that is just and fair.12

  In legal terms, administrative action is defined as a decision, taken or not taken, ‘that is of an administrative nature made in terms of an empowering provision that is not specifically excluded from the PAJA’.13 The decision can be made by an organ of state or a private person exercising a public power or performing a public function that adversely affects rights and that has a direct external legal effect.

  Section 33 of the Constitution guarantees that ‘everyone has the right to administrative action that is lawful, reasonable and procedurally fair’; and that ‘everyone whose rights have been adversely affected by administrative action has the right to be given written reasons’.

  In summary, PAJA ensures that administrative procedures are fair; gives people the right to ask for reasons from officials; and gives citizens the right to have the courts review any administrative action that impacts unfairly on them. As per PAJA, all administrators must follow fair procedure when making a decision and clearly provide the rationale. In other words, they have to explain any decisions taken. They also have to allow relevant parties to have their say before making any decision that might affect their rights – the audi alteram partem principle.

  Van der Nest thus used the most powerful weapon at hand – South Africa’s Constitution – to undermine Bhoopchand’s arguments that the HPCSA’s Fourth Preliminary Committee of Inquiry’s actions were lawful. In this case, the committee’s most important administrative action was its decision to charge Noakes. There was no argument that the committee’s decision amounted to administrative action. There was also little argument that the HPCSA’s action was procedurally unfair. The HPCSA had breached the principles of PAJA and, by extension, Noakes’s constitutional rights. The HPCSA knew its obligations, Van der Nest said. It had agreed in writing to give Noakes written reasons in May 2015 for the decision to charge him, yet he was still waiting.

  In effect, Bhoopchand had made a surprisingly narrow reading of the regulations. He also appeared to have glossed over the basic requirement that any law that contradicted the Constitution must be ‘read down’. ‘Reading down’ is a legal mandate to courts to interpret an unconstitutional statute so as to bring it into line with the Constitution’s liberal demands. Therefore, any rule or regulation that contradicts PAJA and the Constitution must be ‘read down’.14 The reasoning: PAJA is a constitutional statute, which the legislature promulgated as a constitutional right. That constitutional right still exists outside of PAJA. Since the Constitution is supreme, and PAJA is a constitutional statute, PAJA prevails over regulations or statutes, unless specifically excluded. The Health Professions Act, under which the HPCSA was set up, is not specifically excluded.

  Van der Nest also showed that there is nothing in law to suggest that official correspondence by officials exercising a public function could be considered private or personal. PoPI was not designed to be a cover for the abuse of power by officials, he said. Terblanche’s emails were not personal or confidential, as they all related to the HPCSA’s prosecution. There was also nothing ‘inadvertent’ about how the defence had acquired the file. When Van der Nest had asked to view the contents of the file, Mapholisa had readily agreed. The HPCSA had therefore waived whatever privilege there might have been in not handing it over.

  Van der Nest said that the HPCSA’s response so far had raised serious questions of legality, justice and fairness. Chief among them: ‘Where do the chair [Dhai] and members of a preliminary inquiry committee get the power to try and find expert witnesses to prosecute a case after the decision has been made and after that function has been exercised? Where does the chair get the power to try and tell the pro-forma complainant [Mapholisa] how to run his case, to postpone, to get someone else?’ Van der Nest answered his own questions. They did not have those powers. It was also disconcerting, he said, that the HPCSA’s registrar did not take as serious a view of the committee’s behaviour as Noakes and his lawyers were taking.

  When Adams ruled, she came down squarely on the side of the defence. It was ‘astounding, to say the least’, Adams said, that the HPCSA’s Fourth Preliminary Committee of Inquiry had refused to provide written reasons for its decision to charge Noakes. It was in ‘blatant defiance of the Constitution’, PAJA and PAIA, she said, citing the audi alteram partem principle. Noakes’s lawyers had made such requests repeatedly, as had Mapholisa and the HPCSA’s own legal department. Mapholisa had displayed the ‘utmost integrity under circumstances that were trying and traumatic’ in attempting to extract the reasons from Dhai, noted Adams.

  Once the HPCSA had placed Strydom’s complaint before its Fourth Preliminary Committee of Inquiry, ‘why would anyone on earth think … that suddenly it is game over, all fair play out of the window?’ Adams asked rhetorically. ‘That simply does not make sense.’ It was also ‘unfathomable’ that the committee could have made an informed decision without ‘cogent reasons’, she said.

  Adams dismissed Bhoopchand’s suggestion that Noakes’s only recourse was an application to the High Court. It ‘defies all logic’, she said, to expect Noakes to incur exorbitant costs and extensive delays, and suffer severe prejudice, due to the failure of its own committee to comply with its mandate and the Constitution. She agreed that her committee did not have the power to order the registrar to extract the reasons from Dhai; however, they could request her to comply, and it would be ‘a travesty of justice’ if she did not.

  In her ruling, Adams requested that Mjamba-Matshoba provide Noakes with written reasons for the Fourth Preliminary Committee of Inquiry’s decision to charge him, along with all the documentation on which that decision was based, by 4 p.m. on Friday 12 February 2016. (The HPCSA met the deadline in form but not substance. All that Adam Pike would say was that Dhai gave ‘sparse’ reasons.)

  The following day, Bhoopchand called Stellenbosch University psychiatry professor Willie Pienaar to give expert evidence on ethics. Once again, Pienaar’s presence was best explained by the contents of the file. Besides compromising emails, it also contained notes made by Meshack Mapholisa. Two of them are particularly pertinent to explaining Pienaar’s late inclusion as an expert witness for the HPCSA:

  We need to focus on the ethical complaint and the charge sheet and the crux of the matter; the case is not about whether Prof Tim Noakes current theory on
diet is correct or not, it’s about giving medical advice over social media on nutritional matters to a patient you have never met, never spoken to and know nothing about the medical history – in respect to the infant.

  […]

  This is not a hearing about Low Carbohydrate High Fat diets as opposed to the South African Dietary Guidelines which are evidence-based. The outcome of the hearing should not be a conclusion on whether Prof T Noakes theory of LCHF is right or wrong, it should be a conclusion on whether it is unprofessional or not to provide advice over social media to a patient, in this case a baby, about whom you have no history or other information e.g. medical conditions, deficiencies or other risk factor. We do not need a lecture on advantages or disadvantages of a Low Carbohydrate, High Fat diet and the fact of the matter is that professional medical nutritional advice was given over a social network and that is the crux of the complaint.

  Mapholisa went on to list the expert witnesses that, at the time, he proposed to call: Pippa Leenstra, Marlene Ellmer, Salome Kruger and Muhammad Ali Dhansay. Ellmer, Kruger and Dhansay all have expertise in nutrition, not ethics. This indicated a surprising disconnect in Mapholisa’s argument. When the hearing got underway, Ellmer had been replaced, not by an ethicist, but by another nutrition expert, Hester Vorster. There was still no ethicist in sight. With witnesses such as these, the focus of the trial was clearly always going to be on nutrition, not ethics.

  As the hearing progressed in November 2015, Mapholisa must have seen that he was failing to deliver on the ‘crux of the matter’ and decided to secure a real ethicist. Seeing as Dhai, the ‘doyenne’ of South African ethics, had been chairperson of the Fourth Preliminary Committee of Inquiry, and was already party to the decision to charge Noakes, he had to cast a wider net. Still, his choice of Pienaar was surprising.

  Pienaar is a big, chubby man with a mop of silvery hair and a genial, grandfatherly demeanour. His expertise is in psychiatry, although he does have a master’s degree in philosophy and a special interest in medical ethics. He said that fully qualified medical bioethicists are ‘thin on the ground’. That much is certainly true. Despite not having a doctorate in the subject, Pienaar is one of three bioethicists in Stellenbosch University’s Faculty of Medicine and Health Sciences, and lectures part-time on bioethics.

  Pienaar began his testimony confidently enough. He stated his belief that Noakes had a doctor–patient relationship with Leenstra on Twitter. He also claimed that Noakes had ended the doctor–patient relationship ‘without a mutual understanding and consensus’. Pienaar called that ‘another virtue that [doctors] treasure’. He argued that Leenstra’s tweet to Noakes was an ‘I’ rather than a ‘we’ question, despite being in the third person: ‘is LCHF eating ok for breastfeeding mums?’ His reasoning: Leenstra was one person speaking to one doctor on Twitter. He also claimed that Noakes’s tweet constituted medical advice, not information.

  Pienaar readily admitted that he was not an expert on dietary requirements for newborns or infants, but commented on the subject anyway. As a clinician, he said, he knew that such diets were ‘something special’. He suggested that the ‘advice’ that Noakes had given in his tweet was ‘dangerous’. He expressed fear at the possible harm that could have come to the many millions across the globe who might have seen and acted on the tweet. As previous witnesses had done, Pienaar claimed that anyone reading Noakes’s tweet was likely to interpret it as telling Leenstra to stop breastfeeding.

  Pienaar also admitted that he was not active on Twitter. Under cross-examination, he said that he had ‘wilfully’ decided not to be on the popular social network. He clearly knew very little about the dynamics and etiquette of the ‘Twitterverse’.

  Pienaar said that if doctors gave out any medical advice on Twitter, patients would lose trust in them; the doctor–patient relationship would suffer; patients and the community would suffer; and ultimately the entire medical profession would suffer. He appeared blissfully unaware that doctors have been tweeting information regularly for years without any of these dire consequences. Pienaar also predicted that open social media would become a ‘huge thing’ (as if it were not already), and that doctors would have to look at issues of security, informal consent, the ‘whole tooty’. He compared social media to ‘morphine’, which he called ‘fantastic stuff’. He added that we ‘cannot live without morphine, but it is very, very dangerous’. It was ‘very, very wrong’ for doctors to give advice on social media, he said.

  Van der Nest listened with growing impatience to Pienaar’s litany of fears about Twitter. He interrupted him at one stage, saying: ‘I mean no disrespect, Professor, but you are a social media dinosaur.’

  It was ultimately Pienaar’s insistence that Noakes and Leenstra had a doctor–patient relationship that tripped him up under cross-examination and brought into question his credibility as an ethicist. The HPCSA attempted to use Pienaar to exploit a classic circular argument. According to this argument, Twitter does not allow a doctor to interact properly with a patient, as it does not allow for a proper medical consultation. The doctor is unable to take an adequate medical history and examine the patient, and therefore can’t accurately diagnose and decide on a treatment strategy. The medium of Twitter therefore precludes any possibility of a traditional doctor–patient relationship.

  The HPCSA would argue, through Pienaar, that, as a result, no professional should ever provide any form of medical information on Twitter. A more reasonable interpretation might simply be that all parties involved in any Twitter communication understand that the absence of any possibility to take a medical history, to perform an examination and to submit a medical bill means that whatever a doctor tweets, whether offering medical advice or sharing medical information, cannot ever constitute a doctor–patient relationship.

  Yet in his testimony, Pienaar repeatedly stated that those doctors who do give medical opinions on Twitter are guilty of unprofessional conduct. His reasoning: engaging with someone on Twitter immediately sets up a doctor–patient relationship, and once a doctor–patient relationship exists, a doctor is obliged to fulfil certain ‘duties of care’; and because the medium of Twitter does not allow for a proper medical consultation, the doctor in question cannot fulfil these responsibilities. But if, as the argument began, Twitter precludes any possibility of a doctor–patient relationship, how can any doctor on Twitter be accused of violating something that, by the HPCSA’s own reasoning, cannot exist in the first place?

  Pienaar got himself into further trouble with his assumption that simply telling someone to follow the LCHF diet constituted medical advice. It took him a long while to accept that, logically, the reverse must also then be true: telling someone not to follow the LCHF diet is, equally, medical advice. Van der Nest reminded Pienaar that two dietitians, Ellmer and Strydom, had responded to Leenstra on Twitter, and that both had told her not to follow Noakes’s diet. Were they not then equally guilty? Pienaar tried to wriggle out of making any concessions by saying that Strydom and Ellmer had responded to what they considered to be wrong advice, and that the HPCSA had briefed him to consider only Noakes’s conduct on Twitter.

  But Van der Nest persisted. ‘I’m not going to let you off that lightly,’ he told the increasingly frazzled witness. By Pienaar’s own admission, Leenstra now had two choices: Noakes saying that LCHF was good, and Strydom and Ellmer saying that it was bad. In the meantime, Ellmer told Leenstra to email her for further information. With this action, Leenstra was ‘rapidly disappearing’ as Noakes’s patient – if she ever was one, Van der Nest said. And then Strydom stepped in again, tweeting Leenstra to contact her directly and providing her phone number. If Leenstra was indeed Noakes’s patient, as Pienaar said, then surely this action, like Ellmer’s, constituted supersession?

  Pienaar hesitantly conceded that, by his own argument, Leenstra would have to be considered a patient of all three: Noakes, Strydom and Ellmer. As the legal and ethical implications of this dawned on him, he admitted that, in all
likelihood, none of them had in fact had a professional relationship with Leenstra.

  Crucially, Pienaar also conceded that no harm had come to Leenstra or her baby from Noakes’s tweet. He tried to suggest that because Twitter was an open platform, things ‘could have been different’ for anyone else reading the tweet. In other words, there was potential for harm for anyone who read the tweet. Van der Nest focused on the glaring bias in this statement. Pienaar could just as easily have suggested that there was potential for good, he said. Pienaar could only stutter in reply: ‘Absolutely. Absolutely. Again, I am not a scientist.’

  Van der Nest was on a roll. He went for the jugular with Pienaar’s observation that Leenstra had ‘wisely decided’ not to follow Noakes’s advice. ‘You began the exercise by saying you are completely neutral about the [LCHF] diet,’ Van der Nest told Pienaar. ‘It could be good or it could be bad. Yet you described the action of Pippa Leenstra in not following it as a wise decision. Now, if you were truly neutral you would never have described the decision not followed as a wise one.’ Realising that he had overstepped the bounds of his expertise, Pienaar tried to back-pedal: ‘I am not the scientific expert, but just as a clinician, and I do not want to put my foot into this, but I am still of the opinion … that the dietary needs of … neonate or infant or baby are specialised information.’