Noakes cleared of misconduct. Full HPCSA judgment

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After a three-year, multi-million saga, Banting-diet advocate Professor Tim Noakes has been cleared by the Health Professions Council of SA of misconduct after he provided advice on Twitter about what breast-fed babies should be given when being weaned.

Joan Adams‚ chair of an independent panel that considered a misconduct charge brought against Noakes by HPCSA, announced the verdict, reading a 60-page judgment. She said four of the five-panel members were party to the judgment. The other member disagreed with the outcome.

Noakes‚ whose book The Real Meal Revolution promotes a low-carbohydrate‚ high-fat (LCHF) diet‚ was called before the HPCSA after the former president of the Association for Dietetics in South Africa (Adsa)‚ Claire Julsing-Strydom‚ lodged a complaint against him.

It was prompted by a tweet Noakes sent to Pippa Leenstra in February 2014, after she asked him for advice on feeding babies and on breastfeeding. Noakes has been registered with HPCSA since 1974‚ but has not practised clinically since 2000.

Leenstra did not testify in the misconduct hearing‚ but Adams said it was clear she would not have been tweeting if her baby was in need of medical treatment or advice and she required urgent assistance from a practitioner. It could not be assumed Twitter users were ignorant and vulnerable and needed to be protected from themselves‚ she said.

Adams said the panel agreed with the complaint that Twitter did not lend itself to a doctor-patient relationship‚ but that was not what Leenstra was looking for. It was not reasonable to infer from his tweet that he was undermining breastmilk. Nothing suggesting he advocated immediate cessation of breastfeeding.

The report says in May 2014‚ the HPCSA preliminary committee of inquiry met for two days to decide what to do about Julsing-Strydom’s complaint and failed to reach a conclusion. Then following month‚ the committee commissioned a report from retired Northwest University nutrition professor Este Vorster. She said that because Noakes’s advice contravened the SA dietary guidelines‚ he was either unfamiliar with them or distrusted them‚ and therefore not qualified to advise on dietary matters.

The hearing into Noakes’s alleged misconduct began in November 2015.

Adsa president Maryke Gallagher said after Noakes was cleared that his misconduct hearing was “divisive”. “South Africans have also been confused by the ebb and flow of this divisive nutrition debate and the inconsistent nutritional advice provided over many years. That is unfortunate‚” Gallagher is quoted in The Times as saying.

Gallagher said: “ADSA believed‚ at the time‚ that the advice: was not based on current scientific evidence; contradicted international and local guidelines for complementary feeding adopted by organisations like the World Health Organisation; could negatively affect a baby’s health‚ growth and development; and was provided via Twitter without an examination or consideration of the baby’s health or age and therefore nutritional needs.

“Adsa also considered it risky if other moms on Twitter took the same advice. Professor Noakes did not advise the mom to continue with breastfeeding‚ which undermined its importance. For these reasons‚ Adsa considered the advice unconventional and requested the HPCSA to investigate further.”

Gallagher said the use of social media to give medical advice “does pose interesting questions”. “Social media provides significant opportunities for public health information and for use by healthcare professionals. However‚ clear guidelines are required to guide and regulate patient interaction outlining the use and limits of social media by health practitioners.”

Reacting to the finding, Noakes said the case had been brought to “shut up any voice trying to change public opinion about food and the food industry”. But Gallagher said: “There is no conspiracy between big foods and dietitians to sell unhealthy food to South Africans. A healthy population through well-balanced diets is what we strive for.”

She added: “It is very unfortunate that the professionalism and integrity of a number of nutrition scientists in South Africa has been unfairly questioned during this inquiry.

“It is Adsa’s hope that the reputation of nutrition professionals and dietitians as nutrition experts will be restored. Despite the negative sentiment‚ Adsa believed it had a responsibility to inquire about an issue that had such significant consequences for dietitians and other health professionals.”

Noakes said that a number of people had tried to discredit him and tarnish his legacy as a researcher. “This case and the industries behind it were trying to shut me up and shut everyone up about what we should eat,” Noakes said in a Cape Argus report.

The report quotes Cape Town-based paediatric dietitian, Bridget Surtees, as saying she was thrilled about the verdict. She said she had backed Noakes all along and was giving her clients the same advice: to feed their children a low-carbohydrate, high-fat diet.

Noakes, listed as the 38th most followed scientist on Twitter at the time, and the 30th most important tweeter on obesity, during the hearing said the future of medicine lies on the Internet and social media, and this is where people will get their information – “in the wisdom of the crowds”. However, reports News24, Professor Willie Pienaar, a psychiatrist and part-time bioethicist, said during the hearing that doctors cannot give expert advice without consultation. He argued that Noakes had the opportunity to refer the mother to a general practitioner, and pointed out that he didn’t ask the age or health status of the baby.

He said his main concern was that Noakes had given specialist advice via social media and that consultation was key to giving the correct diagnosis.

Expert witness Professor Este Vorster, a former president of the Nutrition Society of SA, said Noakes could not give convincing evidence that his was the optimal diet for lactating mothers. Twitter should not be used for medical advice and an assessment should have been conducted, she testified.

In a summary of the judgment, committee chair Adv J Adams and four out of the five committee members Dr J Giddy, Dr H Saloojee and Mr J Vogel said: 

“The majority of this committee find the following on the facts:

  1. The pro forma complainant has not proven, on a balance of probabilities, that the respondent 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.
  2. On the probabilities, the respondent was acting as an author and proponent of the LCHF diet.
  3. The pro forma complainant has not proven, on a balance of probabilities, that the respondent gave medical and/or clinical and/or medical nutritional advice and/or medical nutrition therapy when he tweeted Ms Leenstra on 5 February 2014.
  4. On the probabilities, the respondent 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 worse, 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.
  5. The pro forma complainant has not proven the existence of a doctor/patient relationship, on a balance of probabilities.
  6. On the facts and probabilities, there was indeed no doctor/patient relationship.
  7. The pro forma complainant has not proven, on a balance of probabilities, that the respondent 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.
  8. The pro forma complainant has not proven, on a balance of probabilities, that the respondent gave unconventional advice or advice which is not evidence-based.
  9. On the facts, this committee finds that no actual or potential harm was proven, neither that any information provided on Twitter by the respondent, whether unsolicited or not, was dangerous or life-threatening.
  10. The pro forma complainant has thus not proven, on a balance of probabilities, that the respondent as a medical practitioner acted unprofessionally and in a manner that is not in accordance with the standards and norms of the medical profession.

Prof Noakes, on the charge of unprofessional conduct, the majority of this committee find you not guilty..”

In his minority judgment, Dr AS Liddle said: “I do not accept the term ‘judgment’ although I am in the minority.  I cannot presume to profess a judgment and all I sort of wanted to do was to give my reasons why I have voted against the rest of the committee.

Firstly, when looking at the charge, Adv Van der Nest in the final submissions at point 8.2 advised, and I think that was the only applicable point that we should consider, that it was unconventional in the sense of not being evidence-based and that it did not conform to the guidelines referred to.

That I think was the only applicable advice.  I do not think any of the others really could be used in determining.

I felt that the pro forma in evidence and submissions had conclusively shown that the respondent is registered as a medical practitioner, and I just want to put in brackets there jurisdiction, and provided sufficient evidence to compel me to vote that Prof Noakes be found guilty as charged.

The pro forma presented evidence regarding jurisdiction that by virtue of Prof Noakes’s registration the HPCSA had legal jurisdiction and also that the respondent was allowed ample opportunity to contest this point.

It is interesting to consider that if that opportunities had been used and if it had been proven that there was no jurisdiction, this case would have ended at the beginning and it is open to speculation why the respondent did not exercise or argue that point.

I will record my reasons for my vote, but mostly based on Prof Noakes’ evidence.

Unconventional: The advice is unconventional in the extreme in that there had been extensive work and collaboration in public health globally towards exclusive breastfeeding and the usage of the term weaning had been phased out.

Prof Noakes admitted that his terminology was unconventional.  He also suggested that he should have used other terminology, and the reference is volume 16, page 2450, lines 24 to 25.

No evidence was led that he had submitted any changes or corrections on Twitter subsequent to the initial tweet.  Instead, he commented that errors in his tweet should have and were corrected by other tweeters in ‘the nature of Twitter’.  It is volume 17, page 2516, lines 20 to 22.

Prof Noakes also accepted that ill-defined messages in Twitter are open to millions of people (volume 16, page 2404) and that the reader could have interpreted his tweet to infer discontinuation of breastfeeding (volume 16, page 2404, line 4).

He further in evidence agreed that the term ‘weaning’ may not be conventional “but is acceptable to him” (volume 16, page 2371, lines 8 to 9).

Much has been made about the limitation of a tweet not allowing for long-windedness and only being limited to 140 characters. However, it is interesting to note that there is no limitation on the number of tweets or even consequential tweets and so two tweets would mean 280 characters, three consequent tweets would mean 320 characters and so and so.

I feel Prof Noakes was wrong to even have created an element of doubt against such an important public health message that took years to entrench.

Harm: The absence of any recorded harm is I believe a fortunate consequence and not an indication of innocence and also does not exclude unreported and presently unknown evidence of harm.

Experience: Prof Noakes confirmed that he had no clinical and/or nutritional experience in paediatrics or neonatology.  He further evidenced that such experience was irrelevant (volume 17, page 2584, lines 9 to 20).

He further misunderstood and misquoted an important paediatric article (volume 17, pages 2698 to 2704).

It is thus patently obvious that tweeting on breastfeeding and infant diets fell outside his scope of expertise.

LCHF: The term is poorly defined and open to confusion.  This confusion has been further emphasised and aggravated by Prof Noakes who testified:

  1. LCHF has several definitions.
  2. LCHF is potentially different to low carbohydrate high fat diet (volume 17, page 2563, lines 11 to 25).
  3. LCHF fits entirely with South African paediatric dietary guidelines (volume 17, page 2565, lines 4 to 5).
  4. His book The Real Meal Revolution is the only resource to get further answers other than to e-mail him (volume 18, page 2633).
  5. He further admitted to several errors in The Real Meal Revolution and the associated webpage.
  6. The Real Meal Revolution does not deal with complementary feeding (volume 17, page 2565, lines 14 to 20).
  7. Banting had been substituted for LCHF in The Real Meal Revolution (volume 16, page 2378, line 23 to page 2379, line 7).

Unsolicited advice: Prof Noakes did not adequately answer questions as to why he made the unsolicited reference to weaning.  The impression that the reason was only to punt his books was never refuted, nor was any contrary evidence led. He further modified his assertions that carbohydrates were not essential in infancy by evidencing the need, “the need to correct that statement at this time” (volume 16, page 2443).

Ethics: A registered medical practitioner does not abrogate his ethical responsibility even on public platforms outside the doctor/patient relationship.  One needs to always be aware of statements made in whatever capacity, but especially so on public platforms.

Adv Van der Nest confirmed this in his final submissions.

Prof Noakes, according to Adv Bhoopchand, fell short on each of the four pillars of bioethics.

The further difficulty is the creation of the digital imprint on social media that remains permanently entrenched. The tweet remains, still without any correction by author, A1 scientist, Prof Noakes, who remains respected and revered by millions, including myself.

In conclusion, I reiterate my conviction and vote that Prof Noakes be found guilty as charged.”

Full HPCSA judgment:

This Committee is bound by the Health Professions Act and its various regulations.  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.

We are bound by the four corners of the charge.  Establishing the prudent facts and determining whether the same indeed constituted unprofessional conduct in the particular circumstances of this case.

This Committee is tasked with a rather unique set of facts and circumstances. 

Firstly, it is to the best of our knowledge the first of its kind that the HPCSA involving the use of social media as well as one of the first of its kind in South Africa involving social media in general.

Secondly, the use of the various platforms of social media by healthcare professionals have not been directly regulated by the HPCSA legislation, regulations, ethical rules or guidelines.  As an aside the HPCSA would appear to be seriously lagging in this regard.

The respondent has not practised clinically as a medical practitioner for many years.  He is not a specialist physician nor a paediatrician, nutriologist or dietician by training. 

The standard of reasonableness by which his actions as a medical practitioner must be measured in terms of South African law is that of a reasonable medical practitioner acting in the same set of circumstances. 

Although the complaint of Ms Strydom refers specifically to the term medical nutrition therapy the pro forma complainant preferred to use the terminology medical or clinical advice. 

Indeed the Preliminary Committee of Inquiry referred in the points of inquiry to unconventional advice and the charge sheet was also so formulated that the respondent provided unconventional advice.

The pro forma complainant contends the respondent cannot be an expert witness in his own case.  It is trite the respondent has a right to remain silent.  He also has the right to testify in his defence and to call witnesses, including expert witnesses.  This is his constitutional right. 

It is inevitable that on occasion a respondent’s testimony may amount not only to evidence on the facts but also to expert evidence.  This would depend on the facts of the case and the particular charge.

Certain matters are indeed a question of fact which this committee can decide.  Other aspects of the charge, for instance whether or not the alleged advice was unconventional, falls within the realm of expert evidence and this committee would be hard pressed to make any decision without the assistance of experts.

One bears of course in mind the perception or possibility of subjectivity and bias testifying in one’s own case but this does not detract from the inherent right to do so and this perception or possibility exists even when one is not giving expert evidence and one of course runs a risk of being cross-examined and any bias being exposed, as is the case with all witnesses whether expert or not.

There is no case law or legislation in South African law prohibiting the respondent from giving expert testimony.  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 not 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.

Establishing the facts and making a finding on the facts is the task of this committee.  This requires scrutiny of the tweet by Ms Leenstra and the response by the respondent, not in vacuum, but in the context of Twitter as a social media platform and in the context of the entire Twitter or tweet thread.

To do otherwise would result in a gross injustice.

Facts must always be decided on all the surrounding circumstances prevailing at the time. 

It is worth mention that one must not confuse admissibility of evidence with evidential or probative weight to be attached thereto.

The pro forma complainant was permitted various indulgences in this case, as was the respondent. 

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.

For one, this is not common cause but vehemently contested and in dispute.

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.

Much is made by the pro forma complainant in argument of the respondent’s letter of reply to the HPCSA dated 2 May 2014 as being evidence of his intention and what he intended to convey when he tweeted on 5 February 2014 when matters were still fresh in his memory.

On scrutiny of this response by the respondent, it would not be a fair and reasonable assumption to make in the circumstances that he did not respond comprehensively or give the complaint due attention. 

For one, the response is four typed pages and he also attached an annexure dated April 2014 regarding a response to the draft dietary guidelines submitted to the Minister of Health in New Zealand by the Human Potential Centre of the University of Auckland, the alleged relevance of which he adduced testimony before this committee.

From his own testimony in this regard it was blatantly apparent that he took this response seriously and gave it considerable attention but was somewhat perplexed by the actual complaint levelled against him by Ms Strydom.

The respondent is not a trained lawyer and there is no indication that he consulted a lawyer or indeed saw any need before responding to the letter of complaint.  Had he done so, a legal professional may have advised him otherwise and in characteristic legal fashion may have analysed each and every conceivable nuance and refer to extensive case law and legislation.

If anything, the respondent replied in a manner perhaps more typical or expected of a scientist, having regard to the evidence relating to his background as a non-practising medical practitioner, a scientist, an author and LCHF proponent.

In fact the only thing he did not do was actually say that he was a scientist and author and acting in such capacity on Twitter.  The precise nature of the hat he was wearing being something an experienced lawyer may have capitalised on.

He may, however, be forgiven therefor as he appeared to hold the view, not entirely without reason, that most people at the HPCSA and the Medical and Dental Board actually knew that he was a scientist, author and LCHF proponent and would perhaps have known or assumed that he was acting in his capacity as such due to his public status.

After all, Ms Strydom herself referred to his celebrity status in a letter of complaint as a matter of fact.  Prof Pienaar was also at pains to emphasise the respondent’s very well-known public status, domestically and internationally.  Prof Vorster also referred thereto.

The HPCSA had also some two years prior to the complaint on 9 October 2012 made a media statement for immediate release relating to and warning the public of the dangers of, inter alia, the LCHF diet titled HPCSA warns on high protein low carbohydrate diet.  See pages 92 to 93 of pro forma bundle 1 – concludes the media report as follows, and this is on page 93:

“The public is urged to consult a registered dietician or nutritionist who has the expertise to design a balanced healthy diet if they want to lose weight and not be swayed by media reports suggesting expensive high protein and saturated fat diets with long term unhealthy effects.” 

See also page 94 of pro forma bundle 1 and when I say bundle 1 I am referring to the evidence in this regard where the Daily News links the HPCSA press release with the respondent, although his name was not specifically mentioned in the HPCSA media report.

There are other clear indications that the HPCSA knew exactly who the respondent was some time before and at the stage when the complaint was lodged and took exception to his nutritional views specifically relating to the LCHF diet.

The use of the words “advice” and “medical nutritional therapy” by Ms Strydom in her letter of complaint and the respondent paraphrasing according to the pro forma complainant and using the terminology “medical advice” is a question of semantics and neither here nor there.

Ms Strydom also used the word “advice” and she had after all lodged a complaint with the HPCSA against the respondent in his capacity as a medical practitioner. 

The council would hardly have had jurisdiction if Ms Strydom had indicated that she was lodging the complaint against the respondent in his capacity as a scientist or an author.

Besides Ms Strydom used the term medical nutritional therapy which was not terminology either the Preliminary Committee of Inquiry, the charge sheet or the pro forma complainant used in depicting the conventional or unprofessional conduct of the respondent. 

Who can then expect the respondent to have kept to the exact wording used by Ms Strydom if neither Prelim, the charge sheet or the pro forma complainant did?

The respondent could not have reasonably been expected to respond as an astute and seasoned lawyer in the circumstances.

On the allegation that the respondent retrospectively during the hearing changed his nutritional stance for babies from an unconventional no-carb stance at the time of the ill-fated tweet based on his letter of reply to carbs in line with the current RSA paediatric dietary guidelines, the following deserves mention:  Ms Leenstra’s tweet referred to LCHF, an acronym standing for low carbohydrate high fat.  It is not in dispute that this is what the acronym means. 

The respondent’s responding tweet also referred to the very same acronym, LCHF.  At no point in the tweeted question or response did either Ms Leenstra or the respondent refer to either low carbs or define LCHF as meaning no carbs or such low carbs as to make the carb content negligible.

Neither did either refer to or define or restrict LCHF to any particular meaning or definition, least of which the so-called ketogenic diet.  At least one other tweeter, Dr Gail Ashford, noticed this and ventured the comment as follows: 

“I do not understand where the danger lies.  Honest query.  Low carb is not NO carb.  It is not high protein either.”

And also a subsequent tweet to Ms Strydom by Dr Gail Ashford:

“Eating fresh real food from grass-fed animals, free-range eggs and full fat products with vegetables, beware?”

At no stage did the respondent’s letter of reply dated 2 May 2014 say no carbs for babies.  When I say carbs, I mean carbohydrates.

In fact his entire response is devoted to a reasoning regarding a low carb diet as opposed to a diet high or higher in carbs, subsequently leading to all types of illnesses in children and later adult life.

There is one generalised statement by the respondent in his letter of reply relating to humans not needing carbs.  That is, see paragraph 2, pro forma bundle 1, page 15.

However the whole gist of his letter of reply was certainly not that of a no or zero or carb-free diet for babies.  In fact the respondent even indicates in the third paragraph of paragraph 5 that he advised both his son and daughter to raise their children on low carb high fat diets.

It is thus difficult to fathom how anyone could read the respondent’s tweet or his letter of reply in context to mean or intend to convey a no carbohydrate diet for babies.

Even the Preliminary Committee of Inquiry could not have understood the respondent’s letter of reply to mean a total deviation from dietary guidelines or an absolute no carb diet as column 3 of pro forma bundle 1, page 6, relating to the Preliminary Committee of Inquiry resolution, sums up the respondent’s reply on 2 May 2014 as follows:

“The respondent denies the allegations levelled against him and submits his methods are substantiated by dietary guidelines.”

Although it may be debated as to what exactly Prelim understood from the respondent’s letter of reply and to exactly what dietary guidelines are referred to in the Prelim resolution, this is mere speculation.

After all the annexure to the respondent’s letter of reply clearly contains a response to draft dietary guidelines and were certainly not dietary guidelines as such, albeit in New Zealand.

In his letter of reply on top of page 2, the respondent furthermore acknowledges as follows.  It is page 50 on top, the first paragraph, page 50, it is the second page of the letter of reply:

“Neither she nor I can be certain of what is the best diet onto which one should wean a child.  As a result we are allowed to come to our own conclusions based on our professional experience and training.  It is perfectly my right to conclude that her advice is wrong and that children should not be weaned in the manner she has been taught.”

It must also be noted that the respondent was at that stage unaware of the expert report which had been submitted to Prelim by Prof Vorster.

On reading of the initial tweet of Ms Leenstra of 3 February 2014, the following is evident:  She initiates the particular tweet.  She addresses same directly to the respondent with twitter name Tim Noakes @ProfTimNoakes and Ms Sally-Ann Creed, a dietician and co-author of the book The Real Meal Revolution.

It must have been apparent to Ms Leenstra just from the Twitter username of the respondent that he was either a professor or regarded himself as one or preferred this Twitter username.

It is not known what exactly Ms Leenstra knew of the respondent at the time and whether she knew for a fact that he was a scientist, author, professor and/or non-practising medical practitioner.  Neither is it known whether and to what extent she had read any of the books he may have written or co-author at the time, including The Real Meal Revolution.

It is not unreasonable to assume on the probabilities that she had some prior knowledge of him and his book The Real Meal Revolution as she addressed the tweet specifically to him and simultaneously to the dietician and co-author of the book and used the acronym LCHF which is associated with the respondent and also referred to in the book The Real Meal Revolution.

Had she not had some basic knowledge of the respondent, especially as an author and LCHF proponent, at the very least she would hardly have addressed the tweet to him and Ms Creed or phrased the question or used the acronym as she did.

The Twitter account of the respondent at the time provided the following description, and I am going to read from my phone, so I am not checking my mails, I am just reading from my phone – checking if my Facebook, if somebody has liked me or not.  Okay so yes, I am quoting:

“Lore of Running, Challenging Beliefs, Waterlogged, Real Meal Revolution, Raising Superheroes author, emeritus professor, runner, low carbohydrate diet proponent.”

Other than addressing the respondent in the form of his Twitter username, Ms Leenstra does not otherwise specifically address the respondent formally as in “Dear Professor” or “Dear Doctor” which one would have expected if she was in awe of him and even more so if she was appointing or addressing or regarding him as her doctor.

Of course one must have regard to the basic style in which tweets are written, the purpose of Twitter and the restriction to 140 characters per tweet.  In any event the specific tweet is simultaneously directed to the respondent and the dietician who also so happens to have co-authored the book The Real Meal Revolution with him.

There was, however, certainly nothing stopping her from addressing him in this fashion if she had wanted to as on a count of characters used in this tweet, it would appear that together with spacing between words she had only used some 109 of 140 characters.  She uses the acronym LCHF.  She refers to breastfeeding moms.  She is worried that all the dairy and cauliflower which breastfeeding moms eat may equal or cause winds in babies.

Her question is thus posed in the plural and relates to breastfeeding moms and babies.  Incidentally the Prelim resolution and charge sheet also referred to unconventional advice on breastfeeding babies, thus in the plural.

There is no indication whatsoever that she is posing a personal or a dual personal and public question.  There is no indication that she is a breastfeeding mother herself.  There is no indication that she has a baby and if so, the age or health status of her baby.  There is no indication that either she or her baby is in any need of medical intervention, a medical or clinical consultation or medical or clinical advice from a medical practitioner.

She does not explain what LCHF means or what she means or intends to convey by the use of this acronym.  No participant in the thread of tweets asks her what the acronym means or what she means or intends to convey by the use of the acronym. 

One may reasonably accept that Ms Leenstra knew something about LCHF or had heard of this acronym somewhere before, otherwise it begs the question as to why she used it.

Where exactly she had heard of this acronym, when and in what circumstances and what she understood thereby we will never know as she never testified.

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.  Presumably Ms Leenstra meant more winds in babies than one would normally expect or want in a healthy baby, specifically winds caused by the breastfeeding mother’s consumption of dairy and cauliflower.

Ms Leenstra could have meant or intended to convey anything by her use of the term “worried”.  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.

It deserves mention that Ms Leenstra initially tweeted on 3 February 2014.  If there was any real cause for concern or worry, one can safely assume that as a concerned and hopefully devoted mother she would in all probability not have been wasting precious time on Twitter and would have used the time to consult face to face with a medical practitioner, paediatrician or the casualty or trauma unit of her nearest local hospital or clinic if she indeed suspected that her child was ill.

In any event, such is the nature of Twitter that Ms Leenstra had no idea whether the respondent and/or Ms Creed would actually read and if so, respond to her tweet and if so, respond in a certain period of time or provide her with any useful information for that matter.  Indeed Ms Creed never responded.

Had there in reality been any actual cause for worry or concern then Ms Leenstra would in all probability hardly have sat around waiting for some future uncertain event to determine her baby’s fate.

The respondent was certainly not obliged to read, respond to the tweet or respond in a certain period of time or to provide Ms Leenstra with any specific information.

Indeed the respondent only replied to her initial tweet some two days later on 5 February 2014.  As indicated Ms Creed never responded at all.

There is no indication on the respondent’s Twitter account that he was a registered medical practitioner or indeed practising as such.  This could certainly never have been inferred by Ms Leenstra or anyone following the Twitter thread. 

There is no indication that Ms Leenstra intended to consult with or extract knowledge or information or any form of medical or clinical advice from the respondent in his capacity as a medical practitioner.

There is simply no indication that Ms Leenstra regarded herself as a patient of the respondent or regarded, addressed or appointed him as her medical practitioner – not expressly, not tacitly.

It is noteworthy that the respondent addressed his response directly to both Ms Leenstra and Ms Creed, thereby leaving the door open for Ms Creed to comment if she so wished. 

Had he regarded Ms Leenstra as his patient, he would hardly have also addressed the tweet to Ms Creed.  It is thus obvious that he recognised the possibility of others having opinions, albeit similar or different from his own and partaking in the tweet thread and the Twitter discussion based on their own expertise and training.  This was also in accordance with his testimony and is precisely what happened.  Such is the nature of Twitter.

It is common cause that the respondent did not answer Ms Leenstra’s question or concern.  The respondent acknowledged during testimony the fact that he did not in fact know the answer to her question.  He was happy for others to partake in the tweet thread, tweet discussion, and express their opinions on her specific question, which they did.

Ms Leenstra did not receive a direct response to her question from the respondent and on filing the various comments in the Twitter thread confusing, presumably including the response from the respondent, she ultimately decided to take Ms Strydom up on her suggestion and consulted with Ms Strydom telephonically in her capacity as a dietician.

It is quite apparent in the context of the entire Twitter thread that the initial tweet and the respondent’s response thereto was part of an information gathering process by a consumer, nothing more significant and no more medical inaction than Googling on the worldwide web before making an informed decision and taking a course of action.

Had Ms Leenstra intended to be the respondent’s patient or appoint him as her doctor, then surely she would have made her intentions clear; would have addressed him on Twitter as such and in more courteous or formal terms appropriate to initiating a doctor/patient relationship, especially as she did not know him personally and had never consulted with him in such capacity before.

There is no way in which one can infer that by tweeting an open-ended general question that she was hoping for some version of a free medical consultation.  She could not assume that he would ever respond and if this was really her intention, why would she have simultaneously addressed the tweet to Ms Creed and why would she even in the circumstances have attempted to consult with or obtain medical or clinical advice from the respondent online on a social media platform subject to public scrutiny? 

Ms Leenstra did not testify.  One must be cautious to assume or in assuming that she did not know what she was doing, or that she was a vulnerable ignorant user who did not understand the basic concept and public nature of Twitter.  She was obviously not concerned with privacy, confidentiality or trust issues, was posing a general question and was not divulging personal or private information to the respondent in his capacity as a medical practitioner.  She was voluntary partaking in social media communication and sharing her concerns and information gathering for all and sundry to see and partaking should they be so inclined.  It was her voluntary choice and constitutional right to associate with others on Twitter, including the respondent, and to divulge as much information, including any personal or private information as she cared to.

The respondent was for all intents and purposes on the probabilities at best someone she had heard of or read about.  It makes more sense and is far more probable that she would pose such questions to him with the knowledge that he was indeed an author, especially of The Real Meal Revolution, a proponent of the LCHF diet and a scientist; that she had heard of and about him in such capacity and felt at liberty to address him on Twitter in the informal manner in which she did.

On the facts she was certainly not in awe of him and did not hesitate to dismiss his volunteered response and followed the advice of others or another course of action.

One cannot impute a doctor/patient relationship to either the patient or the doctor given the available evidence in this case.  There is no evidence of such a relationship.  In fact the circumstantial evidence proves exactly the opposite. 

Are we to assume that a relationship is actually possible without the doctor and/or the patient being aware thereof and consenting thereto?  Where are the patient’s rights to informed consent, autonomy and freedom of choice, expression and association then in terms of the Constitution and booklet 3 of the HPCSA, The National Patients’ Rights Charter?

One can likewise not assume that Ms Leenstra was some unenlightened or uninformed vulnerable and helpless consumer who happened to stumble upon Twitter by chance.

The tweet thread begs the opposite.  Ms Leenstra knew exactly what she was doing and what she wanted, asked her question and acquired information in Twitter; did not receive a direct response from the respondent to a breastfeeding related query, decided to ignore whatever information or opinion the respondent offered and subsequently decided to consult telephonically with the dietician.

Ms Leenstra responded to the tweet of the respondent on the same day, that being 5 February 2014.  This particular response by Ms Leenstra comprises 113 characters of 140 permissible characters, if one counts spacing between words as a character.  She also did not address the respondent formally as in “Dear Doctor” or the like in this tweet.

In this responding tweet it is not entirely clear whether Ms Leenstra is asking a personal or a general question or a dual purpose question as the first part of her question seems to suggest that she is asking a personal question as a breastfeeding mother by the use of the words:

“Okay, but what I eat comes through into my milk”. 

Yet, the second part of her question in the same sentence becomes general yet again by the use of the words:

“Is that not problematic for baby and their winds for newborn stage?” 

She does not say “my baby” or “my baby’s winds” or the like.  It is certainly not unusual or uncommon for persons to ask personal questions or questions relating to themselves in a generalised manner and the same counts for the use of personal terminology in general questions.

It is also not uncommon for questions to have a dual or multiple purpose.  Such is the complex nature of human communication.

The fact that it somewhat later in the thread of tweets indeed became apparent that Ms Leenstra was a breastfeeding mother herself, looking for knowledge or information for her own purposes in relation to her own baby, who may have been newborn, does not take the matter further as that was not apparent at the stage when she initiated her tweet and received the responding tweet from the respondent.

In any event the respondent did not respond to this particular replying tweet for the reasons advanced to during his testimony and the charge does not relate to his failure to respond thereto.

One can safely assume that Ms Leenstra would not have been wasting time and tweeting if her baby was in actual need of medical treatment, urgent or otherwise, and this is borne out by her two mentioned tweets and her subsequent tweets.

In fact there is no indication at any stage that Ms Leenstra or her baby was in need of any medical or clinical treatment or advice at any stage or that she required the services of a medical practitioner.

As far as Ms Leenstra’s response to the respondent’s tweet is concerned one must be cautious not to also in this case not to read any form of urgency or medical emergency in such response.  Just because she repeats the question certainly does not elevate her to the position of a concerned fragile or vulnerable mother or unsuspecting member of the public.

If anything, she was perhaps intending to convey nothing more than exasperation due to the fact that her actual initial question had not been answered directly by the respondent.

In their confidential report to the HPCSA Prof Vorster on page 45 of pro forma bundle 1, paragraph 2.1, sums up Twitter as follows, as defined in Wikipedia:

“An online social networking and micro-blogging service that enables users to send and read short 140 character text messages called tweets.  Registered users can read and post tweets but unregistered users can only read them.  Tweets are therefore in the public domain.  Users access Twitter through the website interface, SMS or mobile device application.”

One must be mindful of making assumptions or drawing inferences in this matter, especially inferences which are not the only reasonable inferences to be drawn in the matter and in certain respects not in keeping with the actual facts.

One must just 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. 

Indeed with the information technology explosion the general public is far more enlightened and informed than it has ever been in the past.

In South African law there is no direct prohibition on the use of social media platforms, including Twitter, by the general public and/or medical practitioners.  Indeed in terms of our Bill of Rights persons have the right of freedom of conscience, thought, belief and opinion.  People also have the freedom to associate with whomsoever they please, albeit doctors, dieticians, authors, scientists, celebrities, etcetera, and people have the right to freely express themselves, which includes freedom of the press and other media, including social media, the freedom to receive or impart information or ideas, academic freedom and freedom of scientific research.

Of course there are exceptions or exclusions and limitations to constitutional rights, including the so-called section 36 limitations clause.  No right is absolute.  The law is often concerned with the delicate balance of various affected entrenched rights.

Understandably from the mere nature and limitations of Twitter, there is no provision for elaborate questions or answers.  It is intended as a short cryptic and fast information sharing mechanism and was not designed for longwinded explanations or references.  That would indeed defeat the whole purpose of Twitter.

There are other mediums and social media networks that are more suitable for lengthy debates and voluminous references.  In fact evidence has been led, which has been argued, that more detailed information on LCHF was available on blogs which were being written at exactly the same time by some of the same participants partaking in this particular Twitter debate.

Indeed even Ms Strydom tweeted a participant that she would resort to blogging for more breastfeeding related information.

This Committee agrees with the pro forma complainant that Twitter does not lend itself to proper consultations, history taking, diagnosis, investigations and clinical examinations required in the usual, traditional or standard doctor/patient relationship.  It, however, finds on the facts that Ms Leenstra was never seeking any of these options for herself or her baby.

Indeed there is nothing to suggest that Ms Leenstra and others participated in the Twitter thread were not aware of Twitter’s limitations and purpose.

Is it not for this precise reason that Ms Strydom indicated that she would blog and not tweet more information on breastfeeding on the request of another Twitter consumer and Ms Strydom for the very same reason suggested a one on one consultation, albeit telephonic, with Ms Leenstra?

Incidentally, much was made of the respondent’s erroneous use of the term “we”.  Indeed in one of the tweets referred to above Ms Strydom herself tweeted to another consumer as follows:

“We will post a blog on healthy eating for breastfeeding moms and infant weaning.  Dangerous to wean an infant onto LCHF diet.”

All and sundry were seemingly acutely aware that Twitter is a very public forum and not conducive or even remotely on par or comparable with a face to face traditional consultation where large amounts of information and advice may be shared in a professional, clinical, private and confidential setting.  It is then that issues of trust, privacy and confidentiality would clearly arise, away from the preying eyes of Twitter and the general public.  There will also be clarity and no ambiguity as to the nature of the professional relationship or the hat which anyone was wearing.

This committee agrees with the pro forma complainant that the respondent never actually answered Ms Leenstra’s concerns regarding baby winds due to the consumption of dairy and cauliflower by breastfeeding mothers.

It also agrees that the respondent never obtained any background information or history regarding either Ms Leenstra or her baby.

This committee also agrees with the pro forma complainant that a member of the public may not or would not have known what either Ms Leenstra or the respondent meant or intended to convey by the use of the acronym LCHF or what exactly the respondent meant by “Key is to wean baby onto LCHF, neither would anyone have known what the definition or proportions of percentages of an LCHF diet is in the context of complementary feeding or weaning.

The undefined use of the acronym in the circumstances indeed permits an extremely wide interpretation.  This committee thus agrees with the pro forma complainant that there is ambiguity in the respondent’s replying tweet.

However, the law does not and cannot protect every user in cyberspace from themselves, their ignorance or downright absurd behaviour.  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 dieticians, medical practitioners and other healthcare practitioners in a traditional professional setting or not. 

If they randomly followed any cyber advice or information out of context without a clear understanding of the actual nature of the advice or information and even misunderstanding same, it was at their own peril. 

It has been said that Dr Google can vacillate between a diagnosis of a mild headache to clinically dead with a few clicks of a mouse.

This committee disagrees that the respondent by tweeting as he did, thereby intended to dilute the breastfeeding message.  This is not the only reasonable inference to be drawn in the circumstances.

In fact the respondent, if anything, 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.

This committee disagrees with the pro forma contention that concessions made by the respondent during his testimony that what was missing from the tweet was an indication that the key was to wean the baby onto LCHF some time in future, that there should hindsight be a perfect science amidst the confusion, preferably have used the terminology real foods instead of LCHF, amounted to proof for an omission of unconventional advice.

In any event it is common knowledge that babies will grow and become adults and have to be weaned from the breast at some stage and complementary foods introduced.

As far as Prof Pienaar is concerned, Prof Pienaar referred to literature and opined that the respondent’s actions amounted to so-called affirmative action and by tweeting in the manner in which he did a the doctor/patient relationship was formed, whereupon the respondent incurred certain duties and obligations as a medical practitioner.

He was also of the opinion that there was serious potential harm caused by the respondent in the circumstances and he was extraordinarily concerned with the theoretical risk to poor vulnerable unsuspecting public and patients in cyberspace.

This committee cannot agree with this opinion in relation to the actual facts of this case.

Furthermore to even remotely regard the responding tweet of the respondent in the circumstances as affirmative action and a crucial moment when a doctor/patient relationship was formed is antiquated at best and certainly not in keeping with the Constitution, the information technology explosion or social media trends.  There was also no potential harm proven.

This committee does not dispute the veracity of the literature quoted by Prof Pienaar, only the application of the literature and ethics by Prof Pienaar to the facts in this matter.

The inferences drawn by Prof Pienaar are not consistent with the proven facts.  The proven facts do not exclude another or other reasonable inferences save the inferences sought to be drawn by Prof Pienaar.

Information sharing, media and social media is no longer what it was.  Not too long ago social media explosion of today was not envisaged and if 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.  Something initially considered outrageous may on the other hand subsequently become established practice.  History is indeed riddled with examples, some rather extreme.  A good example is that of Dr Ignaz Semmelweis, the father of the germ theory, an early pioneer of antiseptic procedures.  He introduced hand disinfection standards in obstetrical clinics.  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 practice to follow his protocol and scrub and hygienise and so prevent the spread of germs causing infection, disease and death.

We live in a dynamic, not static environment.  Humans are ever involving, 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.

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.

On the facts and all the expert evidence tendered it would appear that the respondent’s advice was sufficiently aligned to prevailing South Africa 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 whether or not the advice or information was conventional really only becomes relevant if this committee finds on the facts that the respondent was indeed acting in his capacity as a medical practitioner.

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.

While the committee is aware of evidence that there is a strong link between diet and the fast growing global challenge of obesity and illness, this committee cannot pronounce upon the LCHF diet as such or the relationship between infant and adult nutrition.

This committee makes no credibility finding as far as any of the nutrition experts is concerned and in terms of the case law relating to expert testimony and quoted above and 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 do not also have a logical basis.

 

The Times report
The Times report
Cape Argus
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News24 report


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