Tim Noakes ‘trial’: why it really isn’t about Twitter

By Marika Sboros

Prof Tim Noakes
Prof Tim Noakes. Picture courtesy of the Noakes Foundation.

I could almost feel sorry for the Association of Dietetics in South Africa (ADSA). It seems to dig itself ever deeper into a hole trying to justify its attempts to muzzle world-renowned scientist and Cape Town University emeritus professor Tim Noakes for his views on low-carb, high-fat (LCHF, aka Banting).

ADSA’s new president Maryke Gallagher now says her association isn’t going after Noakes for what he says about LCHF after all, but simply because he said it on a social network (Twitter).

Not surprisingly, Cape Town lawyer Adam Pike, of Adam Pike Law, finds that a little disingenuous, since it is contradicted by evidence all the HPCSA’s own witnesses gave at the hearing against Noakes in Cape Town from November 23 to December 1.

It is probably some consolation to ADSA that it  isn’t alone in any anti-Noakes, anti-Banting hole it digs: the HPCSA is its constant companion. It started out charging Noakes, a medical doctor and one of few scientists in the world with an A1 rating, simply with unprofessional conduct for giving “unconventional advice”.

Unprofessional conduct is a charge usually reserved for practitioners who have done something really dreadful to patients – such as sexually abused them, grievously injured or maimed them, or in a worst case scenario, killed them, or who have committed some other heinous criminal or fraudulent activity.

That charge followed a complaint former ADSA president Claire Julsing Strydom lodged with the HPCSA in February 2014 for two tweets in which Noakes told a breastfeeding mother that good first foods for infant feeding are LCHF, in other words, meat and veg. Ironically, this is advice that Strydom and ADSA also routinely give.

The HPCSA has irregularly amended the unconventional advice charge to include a time period “during February 2014” and an additional element “on a social network (tweets)”. At the beginning of the HPCSA’s November hearing, the time period of the charge was extended to include “January 2014”.

Read also: Tim Noakes and legal dream team helping him survive ‘trial by ambush’

On December 10, Gallagher published a statement on Health24 website saying that Strydom’s complaint – which she quaintly refers to as a “query”  – was filed “with the intent to gain clarity and guidance on the use of social media by health professionals”.

Gallagher also said the HPCSA hearing against Noakes was not, as is speculated, “on behalf of its corporate sponsors” (that have included Kellogg’s, Coca Cola, Nestle, Hulett’s and other sugar industry companies), and that “sponsor influence” was not  “a motivator for the lodging of the complaint”. (To read Gallagher’s statement in full, click on Noakes hearing – it really isn’t about the sponsors.)

Pike has issued a rebuttal, pointing out flaws in Gallagher’s argument and why he believes it is “misleading”:

By Adam Pike

On 10 December 2015, ADSA president Maryke Gallagher published a column on Health24.com entitled Noakes hearing – it really isn’t about the sponsors.
Adam Pike
Cape Town lawyer Adam Pike

Presumably, the column was posted by Gallagher in order to defend her organisation’s position in relation to the influence its sponsors exert over its activities, its policies and the nutritional information that it endorses.

It is noteworthy that ADSA saw fit to elaborate on this point in the public press.

The influence that ADSA’s sponsors exert over it and the role played by industry bodies in funding nutritional research remains in issue in the Noakes hearing held by the Health Professions Council of South Africa (HPCSA).

Everyone has a right to their opinion

Nevertheless, the right to free speech ought to be defended. ADSA should be entitled to make statements in the press or on social media as it sees fit.The right to free speech is a fundamental right, protected by our Constitution.

Justice Kate O’Regan stated in South African National Defence Union v Minister of Defence and Another 1999(6) BCLR 615 (CC) that “Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.”The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.” (my emphasis)

More recently, the Constitutional Court stated in Democratic Alliance v ANC and Another [2015] ZACC 1 (CC) at para 122 that “(freedom of expression) also helps the search for truth by both individuals and society generally.

“If society represses views it considers unacceptable they may never be exposed as wrong. Open debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values.” (my emphasis)

Is Gallagher’s column misleading?

In the second paragraph of her column, Gallagher states the following:

ADSA
ADSA president Maryke Gallagher

“The hearing follows a query filed with the Council by former Association of Dietetics in South Africa (ADSA) president Claire Julsing-Strydom. The query was prompted by Professor Noakes’ advice to a mother, via Twitter, on complementary feeding for her infant and was filed with the intent to gain clarity and guidance on the use of social media by health professionals.”

The statement is problematic for a number of reasons.

Firstly, Gallagher misleads the readers of her column by characterising ADSA’s approach to the HPCSA as a “query”. The Health Professions Act makes provision for “complaints” relating to “unprofessional conduct”. There are no provisions for “filing queries”. Were it a “query” that ADSA intended to file, it went about its enquiries in quite the wrong way.

Gallagher’s use of the term “query” is therefore inappropriate.

Secondly, Gallagher misleads the readers of her column again by stating that the intention behind the “query” was to “gain clarity and guidance on the use of social media”. This is a patently untrue statement.

After Noakes had shared the nutritional information on Twitter, Ms Julsing-Strydom’s initial reaction was:

“I am horrified!! How can you give advice like this????”

Thereafter, Ms Julsing-Strydom’s tweets the following message:

“You have gone too far, be sure that I will be reporting this to the Health Professions (sic) Council SA”

The following morning, Ms Julsing-Strydom addressed an email to the HPCSA.

The email read as follows:

“To whom it may concern

“I would like to file a report against Prof Tim Noakes. He is giving incorrect medical (medical nutrition therapy) (sic) on Twitter that is not evidence based. I have attached the tweet where Prof Noakes advises a breastfeeding mother to wean her baby onto a low carbohydrate high-fat diet.”

“I urge HPCSA to please take urgent action against this type of misconduct as prof (sic) Noakes is a ‘celebrity’in South Africa and the public does not have the knowledge to understand that the information he is advocating is not evidence based – it is especially dangerous to give this advice for infants and can potentially be life-threatening. I await your response.

Kind regards,

Claire Julsing Strydom”

Doubting Noakes’ opinion on nutrition

While it may be the case that Ms Julsing-Strydom was prompted by Prof Noakes’ tweet on complementary feeding for infants, it is patently false that the complaint was filed with the intent to gain clarity and guidance on the use of social media by health professionals.

Ms Julsing-Strydom’s email to the HPCSA speaks for itself.

Moreover, it was clear to any person attending the second day of the hearing against Prof Noakes that the concern that Ms Julsing-Strydom had with Prof Noakes was not the manner in which he gave his opinion on nutrition. Rather, her concern was with the substance of his opinion.

Quite simply, he would not agree with ADSA’s views regarding nutrition.