Getting to grips with the case against Professor Tim Noakes
Last April, the Health Professions Council of South Africa (HPCSA) charged University of Cape Town (UCT) professor Tim Noakes with “disgraceful conduct on social media” after he advised a mother on Twitter to wean her child onto a “low-carb, high-fat” (LCHF) diet.
That I could say I resisted writing about this awful crime for lack of knowledge about the ethics of dispensing medical advice on the Internet; the unavoidable fact is that I missed coverage of Noakes’ trial altogether (d’oh!), even as I was writing about journalist Nina Teicholz’s dust-up with the Center for Science in the Public Interest (CSPI).
Here’s what happened. On February 5, 2014 Noakes replied to a tweet from personal stylist Pippa Leenstra that asked whether the LCHF diet was “ok for breastfeeding mums.”
Making liberal use of the Caps Lock key, dietitian Claire Julsing-Strydom informed Noakes that she would “be reporting this to the Health Professional [sic] Council SA.”
Two days later, she confirmed having reported Noakes to the HPCSA.
For more than a year, the HPCSA was silent on Noakes. Then, in a turn worthy of Kafka, the HPCSA charged Noakes with unprofessional conduct without giving him reasons. A hearing was scheduled to take place over two days in June 2015, but was postponed due to an error on the part of the HPCSA.¹
The hearing resumed on November 23, 2015. The professional conduct committee heard from Julsing-Strydom, who said that Noakes gave advice to a mother without knowing the medical history or age of her baby. The committee’s chairperson Joan Adams stopped Adv. Meshack Mapholisa (for the HPCSA) several times during his questioning, saying he was leading Julsing-Strydom into giving an expert opinion.
Six days into proceedings, the hearing adjourned to allow the committee to make a decision on whether to allow the introduction of a “surprise” witness for the HPCSA. Picking up on February 9, 2016 the committee heard from part-time bioethicist Professor Willem Pienaar, who said that “doctors cannot give expert advice without consultation.” In later testimony, Noakes argued that the problem was not that he gave unsound advice, but that the HPCSA had failed to provide clear guidelines for doctors.
The hearing was further postponed to October 17, when Noakes is expected to be cross-examined by the HCPSA’s lawyers. He faces losing his medical licence if found guilty.
Occupational speech, ethics and social media
Was Noakes’ conduct “disgraceful?” Did he act in a manner that was “not in accordance with the norms and standards of [his] profession?” If so, why did it take more than a year to charge such an evidently reckless and dangerous individual? If not, what was the purpose of summoning him before the HPCSA, other than to punish him for his unconventional views?
For answers to these questions, I looked beyond the jurisdiction of the HPCSA to the United States, whose founding documents afford the broadest possible speech protections. Leading the way on the issue of “occupational speech” is senior attorney for the Institute of Justice (IJ) Paul Sherman, who argues that recent attempts to censor “unlicensed health advice” are at odds with virtually all established First Amendment (i.e. free speech) principles.
Last year, Sherman won a major First Amendment suit on behalf of syndicated advice columnist and self-titled “parenting expert” John Rosemond. In May 2013, Rosemond received a cease-and-desist letter from the Kentucky Board of Examiners of Psychology (KBEP) asserting that only state-licensed psychologists were legally entitled to answer questions from parents about particular children.
Rather than give my own half-baked analysis of the ruling, I’ll let US District Judge Gregory Van Tatenhove explain how the relationship of a psychologist to his patients differs from that of an advice columnist to his readers, and why the distinction matters.
[H]ad Rosemond represented himself to be a Kentucky-licensed psychologist or had he actually entered into a client-patient relationship in Kentucky, the outcome might be different. In the case at hand, he did not. All he did was write a column providing parenting advice to an audience of newspaper subscribers. To permit the state to halt this lawful expression would result in a harm far more concrete and damaging to society than the speculative harm which the State purportedly seeks to avoid, and perhaps that is the “wake up” call best drawn from the facts of this case.
Taking the stand in SA earlier this month, Noakes pressed this distinction hard, saying that he would have responded differently to Leenstra’s question had he been acting as a doctor rather than as a scientist.
“If I had been a doctor and I saw that tweet I would have responded differently. I would have asked her what the problem was, advise on treatment and told her who to go and see. I did not go that route, I went the scientific route and gave my scientific opinion.”
As even a cursory glance at either his Twitter profile or his website shows, Noakes presents himself as a sports scientist, not a medical doctor. Whether the committee will recognise this distinction when it comes time to decide where Noakes ranks in the annals of evil remains to be seen. Until then, you have my non-expert consent to try the LCHF diet for yourself.
¹The hearing was postponed because the professional conduct committee set up by the HPCSA had not been properly constituted in agreement with the provisions of the Health Professions Act.