The November 2015 session of the hearing against a world-renowned scientist, Cape Town University emeritus professor Tim Noakes was a trip through ethical landmines territory. In the first of a two-part series, I give my impressions of what went down this time round. Like all good whodunnits, it had twists and turns. His legal team has called it ‘trial by ambush’.
By Marika Sboros
Here’s a shocker for the legal and ethical books – or at least it should be shocking: the Health Professions Council of SA (HPCSA) admits to procuring secret reports and then using these to charge health professionals.
In other words, it doesn’t give the accused a chance to respond to accusations before being tried. It has done so in its case against University of Cape Town emeritus professor Tim Noakes.
This emerged during the November session of the HPCSA’s hearing at the instance of the Association for Dietetics in SA (ADSA).
The hearing, known as the “Banting for Babies” trial, even the “Nutrition Trial of the 21st Century”, ended a day early on November 30 as the HPCSA faced gaping holes in its case. Noakes, a medical doctor and world-renowned scientist, was unable to begin giving his evidence.
The hearing resumes on February 6, 2016. That will be two years and two days since Johannesburg dietitian Claire Julsing Strydom, then president of ADSA, first started this bizarre legal ball rolling.
Strydom wrote to the HPCSA on February 6, 2014, lodging a complaint against Noakes for two tweets on February 4. In those tweets, Noakes told breastfeeding mother Pippa Leenstra that good first foods for infant weaning were low-carb, high-fat (LCHF). In other words, he was advising meat and veg. That’s advice that ADSA, Strydom and SA’s official dietary guidelines now give.
It can seem shocking – to most people – that the HPCSA uses secret reports to charge professionals. What is arguably more shocking is that its legal advisors see nothing wrong with doing that. HPCSA legal officer Nkagisang Madube testified that this is the HPCSA’s “normal procedure”. He denied any prejudice to anyone, Noakes included.
Johannesburg advocate Michael van der Nest SC said this contravened HPCSA’s own regulation under the Health Professions Act. The rule required that the HPCSA give “copies of any further information” to respondents before charging them so they could respond fully in writing.
He asked Madube to show where the Health Professions Act or the regulation allowed for any “secret reports”. Madube couldn’t do so.
Van der Nest referred to a fundamental principle of justice on which South African law and constitutional democracy are based. It states that all accused persons have the right to access to all available evidence before being charged. If there were no merit to a complaint, the HPCSA would save money and resources by not pursuing spurious complaints, he added.
The HPCSA also appears unconcerned about saving money in prosecuting Noakes. That’s despite the finding of the ministerial task team investigating it since March, of the HPCSA’s “dysfunctional system of professional conduct enquiries which has prejudiced practitioners and the public”.
Estimates are that the Noakes hearing has already cost the HPCSA around R1million, with no end in sight. The HPCSA isn’t saying.
Madube became increasingly belligerent but was no match for the steely Van der Nest.
The hearing heard that in June 2014, an HPCSA preliminary committee of inquiry, which University of the Witwatersrand ethicist Prof Ames Dhai chaired, commissioned a report on the complaint against Noakes from retired Northwest University nutrition professor Este Vorster.
Vorster submitted her report to the reconvened preliminary committee of inquiry held in September 2014. The committee used it to decide to charge Noakes. It formulated the charge on a single point of inquiry: unprofessional conduct in providing unconventional advice on breastfeeding babies.
Vorster’s report did make its way into Noakes’ hands but only in error in April 2015. That was ahead of the HPCSA’s first attempt at a hearing in June 2015. It was attached to a series of emails an HPCSA functionary sent to Noakes’ Cape Town lawyer Adam Pike, of Pike Law.
The initial hearing set down for two days in early June 2015 didn’t get off the ground. The HPCSA tried twice and failed to load its Professional Conduct Committee that is hearing the charge against Noakes with a dietitian. That breached the Health Professions Act and its own regulations. The HPCSA Professional Conduct Committee postponed the hearing until November 23.
Its charge of unprofessional conduct against Noakes raises many questions about the HPCSA’s real motivation.
After all, the HPCSA usually reserves the charge for practitioners who have committed really serious misconduct. It covers sexual misconduct, theft, grievous harm, or in a worst case scenario, premature death of patients.
The HPCSA has to come up with a single point of inquiry representing “four corners of the charge”, a legal expert explained. Another fundamental principle of natural justice is that a penal charge should be clear and unambiguous.
Formulation of the charge is like a “perimeter fence”, legal analysts say. That ensures focus to the prosecution of the complaint, and that the respondent knows exactly what the charge is.
Were it otherwise, say legal experts, the HPCSA could “explore anything it likes that lies on the other side of the fence”. A conduct inquiry would turn into a fishing expedition. That would severely prejudice the person facing the charge.
In this case, the HPCSA simply ignored the fence. At the abortive June 2015 hearing, it amended the charge to include a time period “during February 2014”. It added an additional element “on a social network (tweets)”. At the November 2015 hearing, Mapholisa announced that the time period now included “January 2014” .
It’s not surprising that speculation is growing of a concerted campaign to discredit Noakes. While that campaign is looking more and more likely, quite who all is behind it is not yet clear.
Click here to read: CAN YOU TRUST DIETITIANS WHO ARE IN BED WITH BIG FOOD?
There have been suggestions that Strydom and ADSA are proxies for vested interests in food and pharmaceutical companies and the medical profession. Certainly, many doctors and dietitians appear to be on a mission to discredit Noakes. They don’t want him giving advice that conflicts with medical and dietetic dogma. Both especially don’t want him going against official dietary guidelines.
However, this hearing is making it clear that Noakes and LCHF threaten careers, reputations, livelihoods, businesses and profits.
Earlier in the proceedings, Strydom gave factual evidence. She strenuously denied collusion between ADSA, the HPCSA, dietitians, food companies, or anyone else to muzzle Noakes.
She said her only motivation was “horror” at the advice he gave to the breastfeeding mother. Strydom said she believed the advice he gave could have harmed the infant had the mother followed it.
She joined other witnesses saying his advice was “not evidence-based”.
All the HPCSA’s expert witnesses seemed oblivious to the existence of compelling evidence on efficacy and safety of LCHF for a range of serious diseases.
In cross-examination of Strydom, Van der Nest poked so many holes in her evidence that she became flustered. At one stage, Pretoria advocate Joan Adams, chair of the HPCSA’s Professional Conduct Committee, adjourned the hearing briefly to give Strydom time to compose herself.
Van der Nest got Strydom to concede she had “probably over-reacted” in her response to Noakes’ tweet. Importantly, Strydom conceded that Noakes was not in a doctor-patient relationship with Leenstra as she had alleged.
Van der Nest proposed that if Leenstra had been Noakes’ patient then she was Strydom’s patient as well. And the patient of another ADSA dietitian, Marlene Ellmer. Ellmer just happened to be on Twitter at the same time as Strydom, the mother and Noakes. She also gave advice to Leenstra.
Strydom had gone even further and tweeted her phone and email address, telling Leenstra to contact her for better advice.
Van der Nest said this would have meant that both Strydom and Ellmer had taken over Leenstra as a patient. Both would have been guilty of “supercession” – the legal term for one health professional taking over another’s patient without permission. That breaches the HPCSA rules of conduct. It means the HPCSA should have charged both Strydom and Ellmer, Van der Nest said.
Click here to read: NOAKES: LOW-FAT CAUSES HEART DISEASE! PART 1
Strydom conceded that Leenstra was nobody’s patient.
Van der Nest also forced Strydom to concede that the content of her tweet to Noakes constituted an attack on his professional reputation. She wrote in capitals with exclamation marks that she was “horrified” and would be reporting him.
That breached the HPCSA’s rule of conduct, which states that “no professional should cast reflections on the professional reputation or skill of any person registered under the Act or any other health Act”. Thus, The HPCSA should have charged her as well.
Van der Nest pointed out that Noakes was actively engaged with Strydom and ADSA on a blog on the association’s website on the topic when she reported him to the HPCSA. He put it to Strydom that she did so because she could not win the debate with him on a public platform. She simply wanted to shut him up.
Strydom denied that.
Van der Nest asked Strydom if she would welcome anyone prosecuting her for her opinions, to which she answered no. He responded: “So only Professor Noakes should be charged for his opinions?”
Click here to read: Part 2 – Noakes survives ‘trial by ambush’
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