by Tim Noakes
15
The Verdict
‘… in our reasonings concerning matter of fact, there are all imaginable degrees of assurance, from the highest certainty to the lowest species of moral evidence. A wise man, therefore, proportions his belief to the evidence.’
– David Hume, Scottish philosopher1
Tensions and emotions were running high on the morning of Friday 21 April 2017. The sixth and final session of the HPCSA hearing into the conduct of Professor Tim Noakes was due to begin, and Professional Conduct Committee chair Joan Adams was expected to deliver the long-awaited verdict. The HPCSA had wisely chosen a chair with extensive legal knowledge, more than a decade’s worth of experience in medical law, an enviable reputation for credibility and integrity, and a fiercely independent spirit. Advocate Adams had negotiated the medico-legal, scientific and ethical landmines that the HPCSA had set with consummate skill, humour and humanity.
It was now more than three years since Noakes had sent the tweet that started it all. Seated in the by-now familiar Cape Town conference room, I watched as the various key players in the case arrived. Lawyers for both sides bustled about, shuffled papers on the tables in front of them and spoke to one another in hushed tones. It was a seminal day for all involved. What should have been a simple, impartial, non-adversarial hearing by a statutory body had ballooned into a full-blown trial of Noakes and the LCHF diet he advocated.
The session started late because the stenographer was missing. He had forgotten that Adams had agreed to start an hour earlier, at 9 a.m. instead of the usual 10 a.m. Members of the committee offered to negotiate Cape Town’s notorious, early-morning, peak-hour traffic to collect him. The hearing eventually got underway just before 10 a.m.
Adams began by placing on the record the names of all present, including her fellow committee members: Dr Janet Giddy, Dr Haroon Saloojee, Dr Alfred Liddle and Mr Joel Vogel. After indicating that she had a lengthy judgment to read out, thus dashing any hopes of a quick verdict, Adams stated that her five-member committee was required to reach a majority decision only, not necessarily a unanimous one, and that the majority decision would be binding. The committee, she stated, had reached a majority decision: four members to one. She would read out the binding, majority decision, after which Dr Liddle, the lone dissenter, would read out his minority judgment.
Referring to Noakes as the ‘respondent’ and the HPCSA’s legal team as the ‘pro-forma complainant’, Adams reminded those present that Noakes is a medical doctor who has not practised clinical medicine since 2005. She then went through the events leading up to the hearing, starting with the complaint laid by dietitian Claire Julsing Strydom on 6 February 2014, and referring back to Pippa Leenstra’s original tweet and the various responses from Noakes, paediatric dietitian Marlene Ellmer, Strydom and others.
Adams quoted extensively from the pro-forma complainant’s arguments. She said that the HPCSA’s legal team bore the onus of proof on a balance of probabilities, compared with the stricter requirement of proof beyond reasonable doubt required in a criminal trial. This was an important point. Bhoopchand had sought more than once in his closing argument to shift the burden of proof from the HPCSA onto the defence, especially with regard to the claim that Noakes had a doctor–patient relationship with Leenstra.
Adams paid particular attention to the evidence of Stellenbosch psychiatry professor Willie Pienaar. Pienaar was the only one of the HPCSA’s six witnesses who was called to testify solely on ethics and the existence of a doctor–patient relationship. The relationship was a pillar of the charge against Noakes.
As to the charge that Noakes had been unprofessional in giving advice that could have caused harm, Adams stated: ‘The maxim res ipsa loquitur [the principle that the occurrence of an accident implies negligence] has no application in South African law to matters involving alleged medical negligence or unprofessional conduct.’ Citing case law, she said, ‘courts have repeatedly cautioned that it should not be readily accepted that a professional person such as for example an advocate or a medical practitioner would act in an unprofessional manner’. She added that ‘there is a very real danger of measuring the reasonable practitioner against too high a standard or judging him too strictly and that should be guarded against’.
Her committee had to judge Noakes’s conduct as a medical professional by the standard of reasonableness in terms of South African law, Adams said. She quoted S v Burger, 1975 (4) SA 817 (A), page 879:
One does not expect of a reasonable man any extreme, such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity or the trained reflexes of a racing driver. In short, a reasonable man treads life’s pathway with moderation and prudent common sense.
And Minister of Police v Skosana, 1977 (1) SA 31 (A), page 32:
The reasonable man is presumed to be free from both over-apprehension and over-confidence.
‘This committee is obliged to avoid adopting the approach of the armchair critic when judging the conduct of the respondent [Noakes],’ Adams said. ‘It is trite that after the event even a fool is wise.’ She cited the judgment in Van Wyk v Lewis, 1924 (AD), pages 461–462:
We cannot determine in the abstract whether a surgeon has or has not exhibited reasonable skill and care. We must place ourselves as nearly as possible in the exact position in which the surgeon found himself.
‘Equally applicable to this case we have to place ourselves in the exact position in which the respondent … found himself,’ Adams noted.
Adams adjourned the hearing mid-morning for a 15-minute coffee break. When it resumed, she came out firing on all cylinders. ‘This Committee is bound by the Health Professions Act and its various regulations,’ she said. ‘For this reason, various collateral issues raised during argument will not and cannot be canvassed here. To do so would entail this committee exceeding its statutory mandate. It also deserves mention that this committee’s purpose and mandate is not to set nutritional or dietary standards for the world. So that counts for all babies.’
Adams thus signalled that her ruling would cover Noakes’s conduct as a medical doctor only. It would not be any kind of endorsement of the science for or against LCHF or the conventional, LFHC diet on which South Africa’s dietary guidelines are based.
Adams said that her committee was bound by the ‘four corners of the charge’:
That Noakes had a doctor–patient relationship with Leenstra.
That he had breached the norms and standards of his profession on social media.
That he gave medical advice.
That he gave advice that was unconventional, as it was not evidence-based.
This was a crucial legal point. The HPCSA’s lawyers had often diverged from the four corners in what appeared to be an overzealous attempt to secure a guilty verdict. Their peculiar strategy of ‘changing tack’, as Van der Nest described it, every time they failed to prove a pillar of the charge had clearly not escaped Adams and her committee.
The committee had been tasked with a ‘unique set of facts and circumstances’, Adams said. Firstly, and to the best of her knowledge, the case was the first of its kind at the HPCSA involving the use of social media. It was also ‘one of the first of its kind in South Africa involving social media in general’. Secondly, the use of social media platforms by healthcare professionals is not directly regulated by HPCSA legislation, regulations, ethical rules or guidelines. ‘As an aside, the HPCSA would appear to be seriously lagging in this regard,’ Adams noted.
On the subject of admissibility of evidence, Adams was quite clear. ‘There is no case law or legislation in South African law prohibiting the respondent from giving expert testimony,’ she said. ‘From the manner in which the charge has been couched it would in any event not have been reasonable or fair and neither constitutional towards a respondent as a scientist with expertise in sports nutrition to prohibit him from giving expert evidence. It, however, deserves mention that this committee is no
t a rubberstamp and is not obliged to follow all opinions or expert opinions which witnesses may have expressed in this matter, especially on aspects which this committee is quite capable of deciding without an expert.’
The committee had to establish the facts and make a finding based on those facts. This required scrutiny of Leenstra’s tweet and Noakes’s response, not in a vacuum, but in the context of Twitter as a social media platform and the entire tweeted conversation. ‘To do otherwise would result in a gross injustice,’ Adams said. Consideration also had to be given to all the surrounding circumstances prevailing at the time.
‘From the manner in which the charge sheet was formulated, read with the further particulars, it cannot without further ado simply be said that the matter concerns only infant nutrition and that all evidence in respect of adult nutrition is irrelevant,’ Adams announced. This was another crucial point. Bhoopchand had tried repeatedly to dismiss most of the evidence presented by Noakes and his expert witnesses. Adams made it clear that his tactic had not worked. ‘For one, this is not common cause but vehemently contested and in dispute,’ she said. ‘Secondly, the tweet concerned the diet of breastfeeding mothers. It deserves mention that breastfeeding mothers are also adults with the same rights, duties, obligations and freedom of choice as all adults, including matters concerning their nutrition and that of their babies. After all, it is not babies and infants who are tweeting, reading tweets or deciding which diet to follow amidst a confusing minefield of information and divergent opinions, it is their adult mothers. Thirdly, the pro forma conceded that adult nutrition is not totally unrelated to infant nutrition, and fourthly, on all the expert evidence tendered the relationship between infant and adult nutrition would appear to be somewhat controversial.’
This was putting it mildly.
With a forensic toothcomb, Adams proceeded to unpick all the elements of the HPCSA’s case against Noakes. Leenstra’s first question was general and the HPCSA had made far too much of her words, Adams said. ‘One must not assume something short of a medical emergency by Ms Leenstra’s use of the word “worried” in her initial tweet and neither read into baby winds more than that, namely a relatively normal bodily function of babies and humans in general for that matter. Baby winds are not an illness,’ said Adams. ‘People use all types of words, exaggerations, emotions and subjective expressions in their communications with others. Social media is certainly no exception. One must not assume the worst or anything nail-biting by the mere use of the word “worried”. Worry is a subjective state of mind.’
If Leenstra were genuinely concerned about any kind of medical emergency with her infant, she would ‘in all probability not have been wasting precious time on Twitter’, Adams said. Leenstra was far more likely to have used the time to consult a medical practitioner, paediatrician, or the casualty or trauma unit of her nearest hospital or clinic if she really suspected that her child was ill.
Adams further said that it was not possible to impute a doctor–patient relationship to either Leenstra as the patient or Noakes as the doctor given the available evidence. ‘There is no evidence of such a relationship,’ she said. ‘In fact, the circumstantial evidence proves exactly the opposite.’
It was also not reasonable to assume that Leenstra ‘was some unenlightened or uninformed vulnerable and helpless consumer who happened to stumble upon Twitter by chance’. ‘The tweet thread begs the opposite,’ Adams stated unequivocally.
The HPCSA could also ‘not assume in this day and age of technology that the general public using Twitter or reading Twitter comments, including breastfeeding mums and Ms Pippa Leenstra, are ignorant and vulnerable users in need of protection from themselves and others,’ Adams said. ‘Indeed, with the information technology explosion the general public is far more enlightened and informed than it has ever been in the past.’
About the worst that Adams had to say to Noakes was that his tweet was ambiguous, as the HPCSA’s witnesses had claimed. ‘However, the law does not and cannot protect every user in cyberspace from themselves, their ignorance or downright absurd behaviour,’ she said. ‘If anyone had wanted more information, they could simply have tweeted and asked and hoped for a timeous intelligible and unambiguous response, for nothing is guaranteed. They could also have Googled, blogged or used other internet and/or also social media platforms or not. They could have likewise made appointments and consulted with dietitians, medical practitioners and other healthcare practitioners in a traditional professional setting or not.’
Those who randomly follow cyber advice or information out of context, without a clear understanding of the nature of the advice or information, do so at their own peril, Adams said. After all, ‘Dr Google can vacillate between a diagnosis of a mild headache to clinically dead with a few clicks of a mouse.’
Adams disagreed with the HPCSA’s expert witnesses who said that Noakes had diluted the breastfeeding message with his tweet. ‘In fact,’ she said, ‘if anything, [Noakes] would appear to be very supportive of, and not at all undermining of, breast milk based on his praise thereof in a tweet. There is nothing to suggest that he was advocating immediate cessation of breastfeeding, discouraging breastfeeding or had a problem with breast milk. Even Prof. Kruger commended him in this regard during her testimony.’
Adams spent much of the final section of her ruling on the implications for modern medicine in the information age and on social networks in particular. ‘Information sharing, media and social media is no longer what it was,’ she said. Not so long ago, few could have envisaged the social media explosion of today. And for those who did, it was ‘considered to be the figment of a very disturbed imagination’.
‘It is not unheard of that conventional science in medicine may become bad and even mad science or medicine,’ she said. ‘Something initially considered outrageous may on the other hand subsequently become established practice. History is indeed riddled with examples, some rather extreme.’
Adams cited the example of Hungarian physician Dr Ignaz Semmelweis, an early pioneer of antiseptic procedures. ‘He introduced hand disinfection standards in obstetrical clinics,’ said Adams. ‘He was severely ostracised by his peers and society even after he had proven how he could prevent infant mortality. He spent his last days in an asylum at a relatively young age.’ Today it is established medical practice for health professionals to follow the protocols developed by Semmelweis so as to prevent the spread of germs.
Adams reflected on what it means to be unconventional. ‘We live in a dynamic, not static environment,’ she said. ‘Humans are ever evolving, as is knowledge related to medicine, science and technology. Unconventional does not equate per se to unprofessional. It would depend on the facts in a particular case.’
She then moved on to another key pillar of the charge against Noakes: that his advice or information was not evidence-based. ‘On the evidence before this committee it cannot be found that the pro forma has proven on a balance of probabilities that the respondent gave advice or information on Twitter which was not evidence-based,’ Adams stated.
On the contrary, she said that based on the facts and all the expert evidence, it appeared that Noakes’s advice was ‘sufficiently aligned to prevailing South African paediatric dietary guidelines at the time, such that the only reasonable inference to be drawn is not that the advice was or could be deemed to be unconventional’. In any event, said Adams, whether or not the advice or information was conventional was really only relevant if the committee found on the facts that Noakes was indeed acting in his capacity as a medical practitioner. The majority of the committee had found no evidence that he had acted as such, and therefore any information he gave could not be construed as medical advice, conventional or otherwise.
Adams was careful not to endorse or write off LCHF. She stated simply: ‘After hearing all the expert evidence it is clear that the issue of the LCHF diet is complex and an evolving field of science and nutrition.’
She also said that her co
mmittee would make no ‘credibility finding’ as far as any of the nutrition experts was concerned. However, she did say that in terms of case law relating to expert testimony, ‘on the totality of all the expert evidence presented before this committee it cannot be said that the testimony of the respondent and his witnesses does not also have a logical basis’.
Adams then proceeded to deliver the death blow to the HPCSA’s case. ‘The majority of this committee, being four of the five votes, find the following on the facts,’ she began, before launching into a final 10-point summary:
The HPCSA had not proven that Noakes ‘was acting in his capacity as a medical practitioner or in any dual or multiple capacity, which included the capacity of a medical practitioner, when he tweeted Ms Leenstra on 5 February 2014’;
Noakes had acted ‘as an author and proponent of the LCHF diet’;
The HPCSA had not proven that Noakes ‘gave medical and/or clinical and/or medical nutritional advice and/or medical nutrition therapy when he tweeted Ms Leenstra’;
Noakes had ‘provided information to Ms Leenstra as an author and proponent of the LCHF diet. At best his response was ambiguous and not a direct response to her query. At worst, the response, without clarification, may be interpreted as confusing or unclear. To understand the response properly and in the context of the LCHF diet there would have had to have been meaningful dialogue between Ms Leenstra and the respondent. It is common cause there simply was none’;
The HPCSA had ‘not proven the existence of a doctor–patient relationship on a balance of probabilities’;
‘On the facts and probabilities there was indeed no doctor–patient relationship’;
. The HPCSA had not proven that Noakes had ‘contravened any law, regulation or ethical rule. It has certainly not proven on a balance of probabilities a contravention of Regulation R237 of 6 March 2009 in that this committee could not find on the facts that the respondent advised or diagnosed anyone or any baby on his or her physical health status’;