Prof Noakes wins tweeting case appeal

Organisation: Position: Deadline Date: Location:

NoakesBanting advocate Professor Tim Noakes has won his case at the Health Profession’s Council of SA‚ four years after he tweeted that a mother should wean her baby on to a low-carb-high-fat diet.

The panel found that the first panel was correct to agree with Noakes’s argument that: “Neither she (Strydom) nor I can be certain of what is the best diet on to which to wean a child. As a result, we are allowed to our own conclusions based on professional experience and training.”

He is quoted in The Times as saying: “The predominant feeling at the moment is one of intense relief. Relief that it is finally over and that the appeal judgment was again 100% in our favour as was the original judgment. This chapter is finally closed. I just hope that all the effort put in by myself and my team will help move the dietary guidelines forward to the benefit of the health of all South Africans.”

In February 2014‚ the mother‚ Pippa Leenstra‚ tweeted: “@ProfTimNoakes @SalCreed is LCHF eating ok for breastfeeding mums? Worried about all the dairy + cauliflower = wind for babies??”

The report says the complaint against Noakes was laid with HPCSA by dietician Claire Strydom‚ who was then chair of the Association of Dieticians of SA. Noakes won his case in April last year but the HPCSA appealed the ruling and a new appeal committee‚ including a doctor and a lawyer‚ was established.

The report says the issues at both hearings examined whether Noakes was giving “unconventional advice” over social media and whether he was treating Leenstra’s baby as a patient without conducting an examination. Doctors cannot treat patients over social media. The appeal found there was no doctor-patient relationship between Noakes and Leenstra‚ who had used Twitter to ask for general advice.

In its appeal the HPCSA argued that the protection of public from tweets was paramount. The panel found the matter of protecting the public was not argued in the first hearing or in the heads of arguments and said that for the HPCSA to bring it up later was a “fishing expedition”.

The panel found that the first panel was correct to agree with Noakes’s argument that: “Neither she (Strydom) nor I can be certain of what is the best diet on to which to wean a child. As a result, we are allowed to our own conclusions based on professional experience and training.”

What Noakes frequently said during the trial was that if he was banned for tweeting‚ it would affect all health professionals giving general medical advice on social media‚ or discussing controversial medical issues.

The report says during the appeal hearing Noakes’s lawyers mentioned emails they had accessed through the Promotion of Access to Information request. The emails were between Strydom and a professor of dietetics at North-West University and discussed a plan to complain about Noakes before the tweet in question was posted. Noakes’s legal team argued that the two had planned to take him down and found a tweet to do so.

Noakes has said his legal costs would have run into millions had his two advocates‚ Mike van der Nest and Rocky Ramdass‚ not acted for free.

The report says there was no order about costs‚ so the HPCSA did not need not pay any of his legal fees.

The Times report

Full Judgment

HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA
IN THE APPEAL COMMITTEE OF THE HEALTH PROFESSIONS COUNCIL OF SOUTH AFRICA HELD AT PRETORIA

In the matter between:

THE PROFORMA COMPLAINANT

And

Dr TIMOTHY NOAKES

APPELLANT

RESPONDENT

JUDGMENT

1. INTRODUCTION

1.1 The respondent was arraigned before the Professional Conduct Committee, (the Committee) on a charge of misconduct. The charge sheet reads as follows: “professional conduct or conduct which when regard is had to your profession is unprofessional, in that during February 2014, you acted in a manner that is not in accordance with the norms and standards of your profession in that you provided unconventional advice on breast feeding babies on social networks (t weets)” .
1.2 On the 21st April 2017, the majority of committee acquitted the respondent of the charge.
1.3 The Health Professions Council of South Africa now appeals against that decision .

2. BACKGROUND
2.1 The facts of this matter emanate from social media interaction. The whole issue began on the 3rd February 2014 when @Pippaleenstra tweeted to the respondent, @ProfTimNoakes and Sally-Ann Creed @SalCreed as follows: “is LCHF eating ok for breastfeeding mum? Worried about all the diary+ cauliflower =wind for the babies.”
2.2 On the 5th February 2014, the respondent replied as follows: “Baby doesn’t eat dairy and cauliflower. Just very high fat breast milk. Key is to wean baby onto LCHF” .
2.3 After this reply, a number of tweets were exchanged as a number of other people joined the conversation with differing views on the subject.
2.4 Mrs. Strydom, a registered dietician and chairperson of Association of Dieticians of South Africa (ADASA) lodged a complaint with the Appellant.

3. ISSUES IN DISPUTE
Having perused the papers and listened to arguments by both parties, we are of the view that the following are the main issues for determination.
3.1 Whether or not the respondent received a fair trial, more specifically relating to the issue of the protection of the public as alleged during the appeal.
3.2 Whether or not the issue of doctor-patient relationship is relevant to the issues in casu, and if so, whether or not there was such a relationship.
3.3 Whether or not the respondents’ replying tweet amounted to an unconventional advice,
4.
4.1 WHETHER OR NOT THE RESPONDENT RECEIVED A FAIR TRIAL, MORE SPECIFICALLY RELATING TO THE ISSUE OF PROTECTION OF THE PUBLIC
4.2.1 M rs. Strydom laid a complaint against the respondent for giving incorrect medical advice (medical nutrition therapy} on twitter that is not evidence based. She further “urged the HPCSA to take action against this type of misconduct …”
4.2.2 The appellant approached the matter by prosecuting the respondent for giving advice to MS Lenstra. Therefore, the center of this matter is and has always been the tweet of Ms Lenstra and that of the respondent. In its judgement the committee a quo correctly approached the issues from this angle .
4.2.3 The issue of public protection is not at the heart of this matt er. It was initially never considered by the appellant as being an integral part of their matter. It is a totally new issue that was raised before the appeal committee. This issue, was by implication, deferred by the appellant with the hope that they will secure a conviction and same will be raised as an aggravating factor during the pre-sentencing st age.
4.3 The ch ar ge sh eet is silent on the issue of protection of the public. This latter issue is not one of the elements of the alleged transgression.
4.4 It is trite law, as stated in various criminal law reports, that a party is entitled to as much information about the offence as is necessary for him/her to prepare of his or her defense. The purpose of a properly formulated charge sheet is to bring awareness and clarity as to what the state intends proving. When a party has to infer from the facts, he or she has to make a deduction which creates uncertainty. The law reports are a testament to the fact that courts, at times, draw wrong inferences from the facts proved before them. A party should not figure out what challenges he faces; he should be informed.
4.5 In our view the respondent was not informed, at the commencement of the trial or at any stage thereafter that protection of the public was an essential element of the transgression that he was charged with. As it will become apparent later this issue was seriously raised by the appellant during arguments at the appeal hearing. It was an afterthought which was not dealt with by the appellant at any stage of the proceedings before the committee a quo.
4.6 The pre-trial minutes has 6 pages and the issue of protection of the public is mentioned only in one paragraph and it reads as follows “The Respondent’s representatives sought the admission from the Pro Forma Complainant that HPCSA has publicly held itself out to have the purpose of guiding the profession . This was admitt ed. However, the Pro Forma Complainant added that the HPCSA is also mandated to protect the public. ”
4.7 In our view, the appellant vehemently dealt with public protection for the first time during the appeal proceedings. Neither did the appellant deal with it in its heads of argument s.
4.8 The manner in which the case for the respondent was presented indicates that protection of the public was not an issue or one of the issues to be decided by the committee a quo.
4.9 Professor Pienaar was called by the Appellants specifically to prove that there was a doctor/patient relationship between Ms Lenstra and the Respondent. The issue of public protection was not dealt with in his evidence- in- chief. He mentioned same during cross examination.
4.10 He specifically testified that”. if we as clinicians are going to give medical advice on open social media our patients will not be able to trust us anymore and doctor/patient relationship will suffer. My profession will suffer, and the patients will suffer. We cannot allow doctors to give advice without consultation…”
4.11 He further said that”. The other thing that worries me is after giving specialist advice the patient could have acted on it, but my problem is there maybe thousands of lay people out there that could have acted upon this expect advice and to me that is not respecting our patients…”
4.12We are of the view that had the appellant intended to proof protection of the public the line of examination- in- chief of Prof. Pienaar could have been different. He could have commenced his testimony by directly indicating the dangers of consulting with the patient on social media and how this will affect other members of the public using same. He could have been more direct rather than merely saying in passing that the patient, profession and doctor patient relationship will suffer.
4.13 In the premises, it is the unanimous decision of the committee members that the issue of protection of the public is a fishing expedition by the appellant. This argument commenced during the hearing of the appeal as mentioned earlier. It is not one of the elements of the charge. It was not argued by the Appellant when arguing the matter before the committee a quo. It is not contained in their heads of arguments. The respondent adjusted their argument during the hearing of the appeal in a desperate endeavor to secure a favorable decision and such approach is unacceptable.
4.14 Therefore this argument is rejected.
5.Whether or not the issue of doctor-patient relationship is relevant to the issues in casu, and if so, whether or not there was such a relationship.
5.1 The Applicant argued that, in his letter of reply the respondent presented himself as a doctor, and therefore he is precluded from raising the issue that he was responding to the tweets as a scientist.
5.2 The committee a quo dealt extensively with this issue.
It held as follows; ‘the respondent is not a trained lawyer and there is no indication that he consulted a lawyer or indeed saw any need to consult with one before responding to the letter of complaint. Had he done so, a legal professional may have advised him otherwise and in characteristics legal fashion may have analyzed 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 scient ist…’
5.3 Our view is that of the committee a quo in this respect is correct because there is no suggestion that this was an afterthought. The respondent did not adjust his defense to suit his case. The respondent merely put his version in proper perspective after obtaining legal advice.
5.4 THEREFORE, the argument by the appellant that the issue of doctor patient relationship is irrelevant is rejected.
5.5 The committee a quo correctly applied its mind in its evaluation of the issue of the doctor-patient relationship. The committee a quo spends quality time evaluating the conduct of both Ms Lenstra and the respondent as can be deduced from the tweets. In addition, the response to Lenstra was a general one without a particular reference to her baby instead to babies. Ms Lenstra chose not to follow the advice of the respondent and instead chose to consult a diet ician. Thereafter Lenstra’s baby was consulted by M rs. Strydom, therefore excluding the respondent.
5.6 In our view, the committee a quo correctly held that there was no doctor/patient relationship between Ms Lenstra and the respondent.
6.Whether or not the respondents’ replying tweet amounted to an unconventional advice for breast feeding babies.
6.1 The appellant argued that the committee a quo failed to address whether or not the Respondent provided unconventional advice for breast feeding babies.
6.2 In its judgement the committee a quo held as follows “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 the tweet. There is nothing to suggest that he was advocating immediate cessation of breast feeding, discouraging breastfeeding, or had a problem with breast milk. Even Prof Kruger commended him in this regard during her testimony” .
6.3 The committee a quo held that both parties in their tweets do not define LCHF as implying no carb. The tweet of Dr. Gail Ashford is apposite and reads as follows “I do not understand where the danger lies. Honest query. Low carb is not NO carb. It is not high protein either. The letter of reply of the respondent, dated 24th May 2014, does not say no carbs for babies. Same does not imply no carbs at all for babies.
6.4 The committee a quo correctly quoted the Respondent where he opined as follows, “Neither she or I can be certain of what is the best diet onto which to wean a child. As a result, we are allowed to our own conclusions based on our professional experience and training”
6.5 Therefore, the appeal committee is satisfied that issue was comprehensively dealt with by the committee a quo and it did not misdirect itself in its considering it.
6.6 Therefore, the argument of the Appellant that the respondent provided unconventional advice of breast feeding babies is not persuasive and is reject ed.
Wherefore, it is the unanimous decision of the members of the appeal committee that the appeal be dismissed. It is so ordered.

COUNTER APPEAL
7.
The following are common cause:
7.1 That the committee a quo did not make any order as to costs
7.2 That the Act is silent on the issue of costs.
7.3 That the committee a quo is a creature of statutes and do not have the inherent powers to act ultra vires the Act.
8.
8.1 In our view there is no cost order to be varied by the appeal committee.
8.2 The matter cannot be remitted to the committee a quo because it is now
functus officio.
8.3 The Act is silent on the issue of costs and being a creature of statute, committee a quo has inherent jurisdiction to act ultra vires the Act. Therefore, to remit the matter to the committee a quo for consideration of the costs will be costly to the parties and a fruitless exercise

Adam Pike
attorney | ba llb llm
adam@pike-law.co.za
+27 (0) 21 286 1555 | +27 (0) 82 312 8118
www.pike-law.co.za | Locate Us
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