The HPCSA vs. Professor Noakes: A reflection

A week has passed since the judgement was delivered by Chair Joan Adams in the case of the HPCSA (Health Professions Council of South Africa) vs. Professor Tim Noakes. This week I’d like to reflect upon the case, the choices that it offered and the legacy that it might leave.

At the outset, it is vital to note that Tim did not choose for any of this to happen. This was something ‘done to him’, which I personally think was pre-meditated, malicious and motivated and I have nothing but contempt for the complainant, Claire Julsing Strydom, and little more regard for the pro-forma complainant, the HPCSA. No person would choose to have this hanging over them for three years. No person would want the immense emotional and mental burden that this imposed upon them and their family. No person would wish to waste millions of rand responding to the whim of a spiteful dietician. Tim did not choose this and that is a very important point to keep in mind.

The magnificent Chair in this hearing, Advocate Joan Adams, showed great empathy with this fact when, in her ruling, she quoted the following passage from a case involving a surgeon – Van Wyk v Lewis, (p461-462): “We must place ourselves as nearly as possible in the exact position in which the surgeon found himself.” Chair Adams applied the same thought to Tim: “Equally applicable to this case we have to place ourselves in the exact position in which the respondent found himself.”

In an interview immediately after the verdict Tim described the toll that this has taken: “It’s been very, very demanding on us and on our lives and financially it’s been huge. The real concern was the emotional strain that it had on us… As my wife said, did they ever consider the consequences for my wife and myself and our family? That was the hardest bit for both of us to cope with.”

Thankfully Advocate Adams and the committee had the emotional intelligence and decency to put themselves in Tim’s shoes; qualities that the complainant and pro-forma complainant demonstrably lacked.

The Charge

Having noted that Tim did not choose for this to happen, a second important point is that the charge should never have happened. Having received an emotional complaint from a dietician, the HPCSA had a duty to all professionals it represents to treat that complaint with wisdom and impartiality. A prima facie examination of the complaint should have established that the HPCSA’s own requirement for a doctor patient relationship had simply not been met. This is defined as follows:”The relationship between the patient and the Healthcare practitioner is established when the practitioner agrees to treat the patient and the patient agrees to be treated”.

There was no evidence that Tim had even adopted a role of practitioner (his Twitter profile makes no mention of this), let alone had he agreed to treat a random tweeter as a patient (Pippa Leenstra in this case). There was no evidence that Pippa Leenstra saw herself as a patient, let alone had she agreed to be treated by one of two authors to whom she tweeted. By the HPCSA’s own definition, no doctor patient relationship existed and therefore no misconduct could have occurred and therefore no charge could be made.

The HPCSA was biased and intent on prosecuting Tim from the outset. Those tasked with preparing reports to see if Tim should be prosecuted were ‘friends of friends’ – conflicted and prejudiced. Nothing was independent or impartial. Time was allowed for a paper to be published, to provide the ‘evidence’ that the HPCSA, the Association for Dietetics in South Africa (ADSA) and the Nutrition Society of South Africa “were all waiting for” in their collusion against Tim.

The first that Tim heard of the charge was on 28 Jan 2015. The HPCSA sent Tim a letter saying that he was being charged with unprofessional conduct and that there would be a hearing on the 4th and 5th of June 2015 to hold the inquiry into Tim’s conduct. It is important to have the charge in mind:

THAT you are guilty of unprofessional conduct, or conduct which, which [ZH – “which” did appear twice] 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 breastfeeding babies on social networks (tweet).”

What options did Tim have?

Tim had no option but to defend himself against the charge. However, we can view the charge in two parts: 1) was there a doctor patient relationship? and 2) if there were, was the ‘advice’ given unconventional? (Note – it was never accepted by Tim’s legal team that advice was given. Tim responded to a question, addressed to two authors, with information, not advice). (Arguably there was a third part to the charge – that social media was not an appropriate forum for advice, but on this point the parties were agreed. Indeed it was a key part of Tim’s defence that social media is not a doctors’ surgery, which merely provides further evidence for the fact that a doctor patient relationship did not exist.)

The earliest that Tim could possibly have stopped this nightmare was maybe 10 months earlier than it did end. Tim’s case for the defence did not start until February 2016. The only choice that Tim and his legal team had at that point was – do we argue against the doctor patient relationship alone? If they could prove that there was no relationship, then there would be no misconduct. Case closed. And it should have been as simple as that. However, first, this was a risky strategy. If the panel found that there had been a doctor patient relationship, the unconventional part of the charge would have been left unaddressed (and remember, one panel member was so ignorant about social media that he did think that this was possible). Secondly, this would have left Tim in defence mode throughout the hearing and the best way to stand up to bullies is not to allow oneself to be bullied. Thirdly, it would have missed an opportunity that the world may not have again: the chance to put the history of nutritional evidence on trial.

A huge part of Tim, his family and friends must reflect and wonder “was this worth it?” However, all but 10 months was unavoidable (and, since October 2016 was the earliest the panel could meet, for a number of days, after February 2016, it is likely that this would have been the date for closing arguments and deliberations and the verdict may have followed before Christmas if lucky – saving only 4 months of pain). Was it worth 4-10 months to put the evidence on trial? Was it worth 4-10 months to have court documentation of the history of nutrition and the dietary guidelines? Was it worth 4-10 months to become a worldwide hero for the real food/Banting/LCHF movements? I think so, but then I didn’t suffer in the way that Tim and his loved ones did. Judging from the outpouring of admiration and affection for Tim (on Twitter of course!), numerous other people also think that this choice was worth it. There is an enormous sense of gratitude towards Tim for having seized the opportunity to use this charge to do something that Strydom and the HPCSA could not have foreseen and most certainly did not welcome.

The ruling and the evidence

Chair Adams made 10 points in summary at the end of her ruling. They are repeated verbatim at the end of this note for convenience. In the interview after the verdict, Tim expressed elation with the verdict and the fact that the entire 10 point summary had gone in his favour: “a 100% victory.” He added that “I would have liked the committee to have made a decision on the evidence that we presented… however Advocate Adams indicated that that was not her responsibility”. It wasn’t the committee’s responsibility, but, nonetheless, the committee set on record three particularly pertinent passages in its full ruling (watch out for many double negatives):

1) Point 8 from 10 in the summary: “The pro-forma complainant [the HPCSA] has not proven on a balance of probabilities that the respondent [Tim] gave unconventional advice or advice which is not evidence based.”

2) Just before the summary, Chair Adams stated: “On the facts and all the expert evidence tendered, it would appear that the respondent’s advice was sufficiently aligned with prevailing South Africa paediatric dietary guidelines at the time such that the only reasonable inference to be drawn is not [my emphasis] 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.”

3) This passage was shortly followed by: “In terms of the case law relating to expert testimony and quoted above and in 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.”

Thanks to Tim presenting the evidence, there is now a legal ruling that the HPCSA has not proven that Tim’s position is without evidence based. The HPCSA has not proven that it was unconventional. The committee volunteered that the full presentation of evidence by Tim and his witnesses was not without logic.

To me that’s the icing on the cake. The cake is the fact that, under oath, there are 12 days of testimony from Tim, Nina Teicholz, Caryn Zinn and me putting on public record that the dietary guidelines are not evidence based and the harm that has ensued.

I will extract a final quotation from the ruling: “While the Committee is aware of evidence that there is a strong link between diet and a fast growing global challenge on obesity and illness, this Committee cannot pronounce upon the LCHF diet as such or the relationship between infant and adult nutrition.”

It was not the role of this committee to pronounce upon it. They don’t need to pronounce upon it. Thanks to Tim, it’s out there and that can’t be taken away.

Something even bigger?

While reflecting upon – was it worth taking the opportunity to put the evidence on trial? – there is something else that we would not have uncovered, but for Tim’s brave and selfless path. It is unlikely that the scandal of the Naude et al review would ever have come to light had Tim’s legal team taken the doctor-patient route alone. It was only as the trial unfolded that the importance of this review in the decision to prosecute Tim became clear. This is fully documented here. Given that it was during the summer of 2016 when Tim first suspected that this paper may not be robust, had the case been closed in February 2016, and awaiting closing arguments, there would have seemed little point in investigating this paper further. Boy what a loss that would have been!

In addition to the evidence having been presented and the Naude paper having been dissected, Tim’s choice of the road less travelled may also make other complainants think twice before taking on any of the world’s thought leaders. This brings me on to…

What next?

Given that Tim did not choose for any of this to happen and given that this may have bankrupted, financially and emotionally, lesser mortals, the human instinct for fairness says that someone should ‘pay for this’. The complainant, Claire Julsing Strydom, should not have made the complaint. The pro-forma complainant, the HPCSA, should not have made the charge.

When children misbehave, they need to have consequences of their bad behaviour otherwise they don’t learn to behave. There need to be consequences from this case or there will be more dieticians complaining (see Jennifer Elliot, Dr Gary Fettke, Prof Grant Schofield) and more professional bodies showing themselves to be biased and heavy handed (see AHPRA vs. Fettke, Australian pharma vs. Dr Maryanne Demasi). If Tim’s legal team proceeded with a costs suit against the complainant and/or pro-forma complainant, this would be completely understandable.

However, I’m not sure that this should be what Tim personally does next. He is entitled to every sense of having been wronged that can possibly be held. He should rightly feel enraged. But, while the world of nutrition and sports science has gained much from Tim spending three years doing battle, rather than two and a bit, the world of nutrition and sports science will lose out if Tim spends one more day in a court room. Tim’s place is in a laboratory or lecture theatre, continuing his role as one of the rare A1 rated scientists in this field.

Tim has already challenged at least eight significant beliefs: 1) The belief that marathon running provides complete immunity from fatal coronary atherosclerosis; 2) The belief that dehydration causes exercise-associated collapse including heatstroke; 3) The belief that people should drink as much as tolerable during exercise; 4) The belief that the more rugby that players play, the better they perform; 5) The belief that “Peripheral” fatigue limits exercise performance; 6) The belief that it would not be possible to swim 1km in a Speedo at the North Pole in water at -1.8 degrees C; 7) The belief that a high carbohydrate diet is optimum for health (and athletic performance); and 8) The belief that catastrophic rugby neck injuries are not preventable.

We need Tim to be free from the negative energy of righting a wrong. We need him to be free to challenge more beliefs. If all the understandable outrage can be harnessed and channelled positively into further scientific breakthroughs, who knows what might be achieved? Perhaps the best revenge of all would be to add the ninth, tenth and more shattered beliefs to one’s legacy? Maybe destroy one’s accusers with genius, not litigation. Humiliate them with yet more evidence, which continues to keep their own woeful advice firmly on trial.

In Summary:

  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 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 prove on a balance of probabilities a contravention of regulation R237 of 6 March 2009 and that this Committee could not find on the facts that the respondent advised or diagnosed anyone or any baby on his/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 not proven on a balance of probabilities that the respondent as a medical practitioner acted unprofessionally in a manner which 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. (ZH – at which point, the court room broke out into spontaneous, prolonged support and a wonderful, warm smile appeared on the face of Chair Adams).

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