NOAKES: LEGAL TEAM FIGHTS ‘TRIAL BY AMBUSH’ – PART 1

The November 2015 session of the hearing against Prof 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. The Health Professions Council of SA (HPCSA) admits to procuring secret reports to charge health professionals. In other words, it doesn’t give the accused a chance to respond to all evidence 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 against him.  The HPCSA is now facing gaping holes in its case. Noakes, a medical doctor and world-renowned scientist, was unable to begin giving his evidence.

The hearing ended a day early on November 30 and will resume on February 6, 2016. That will be two years and two days since Johannesburg dietitian Claire Julsing Strydom started this bizarre legal ball rolling.

Dietitian Claire Strydom

Dietitian Claire Strydom

Strydom wrote to the HPCSA on February 6, 2014, lodging a complaint against Noakes for a single tweet. She was president of the Association for Dietetics (ADSA) at the time. She complained in her personal capacity.

In the tweet, Noakes told breastfeeding mother Pippa Leenstra that good first foods for infants are low-carb, high-fat (LCHF). In other words, he was suggesting meat, fish, chicken, eggs, dairy and veg. That’s advice that ADSA, Strydom and SA’s official dietary guidelines now give.

It can seem shocking that the HPCSA uses secret reports to charge professionals. What is arguably more shocking is that its legal advisors see nothing wrong with that. HPCSA legal officer Nkagisang Madube testified that this was “normal procedure”. He denied any prejudice to anyone, Noakes included.

Johannesburg advocate Michael van der Nest SC said that the use of secret reports contravened the Health Professions Act. Thus, the HPCSA had to give “copies of any further information” to respondents before charging them so they could respond fully in writing.

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.

Madube became increasingly belligerent but was no match for the steely Van der Nest.

He asked Madube to show where the Health Professions Act or the regulation allowed for any “secret reports”. Madube could not do so.

Michael van der Nest

Michael Van der Nest, SC

Van der Nest also said that if there were no merit to a complaint, the HPCSA would save money and resources by not pursuing spurious complaints.

Estimates are that the Noakes hearing has already cost the HPCSA around R1million, with no end in sight. The HPCSA isn’t saying. It has also shown itself to be unconcerned about saving money in prosecuting Noakes. That’s despite the finding of the ministerial task team investigating the HPCSA since March 2015. The team’s report showed the HPCSA’s “dysfunctional system of professional conduct enquiries”. These have  “prejudiced practitioners and the public”.

The hearing heard that in June 2014, the HPCSA’s Preliminary Committee of Inquiry commissioned a report from retired Northwest University nutrition professor Hester “Este” Vorster. University of the Witwatersrand ethicist Prof Amaboo “Ames” Dhai chaired the committee.

The committee reconvened in September 2014 and used Vorster’s report to decide to charge Noakes. It formulated the charge on a single point of inquiry: unprofessional conduct in providing unconventional advice on breastfeeding babies.

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Vorster’s report made its way into Noakes’ hands but only in error in April 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 was set down for two days in June 2015 but didn’t get off the ground. The HPCSA tried twice and failed to load its Professional Conduct Committee 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 questions about the HPCSA’s real motivation.

Tim Noakes Tweet Strydom

The  HPCSA usually reserves the charge for practitioners who have committed really serious misconduct. Grounds include sexual misconduct, theft, grievous harm, or in a worst case scenario, premature death of patients.

As well, the HPCSA has to come up with a single point of inquiry representing  “four corners of the charge”, a legal expert explains. 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, the HPCSA could “explore anything it likes that lies on the other side of the fence”. A conduct inquiry would then turn into a fishing expedition. That would severely prejudice the person facing the charge.

In the case against Noakes, the HPCSA 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. However, who is behind it is not yet clear.

Click here to read: CAN YOU TRUST DIETITIANS WHO ARE IN BED WITH BIG FOOD?

 

There are 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. ADSA and some doctors don’t want Noakes going against official dietary guidelines.

However, the hearing is showing that Noakes and LCHF threaten careers, reputations, livelihoods, businesses and profits.

In her evidence,  Strydom strenuously denied collusion between herself and the HPCSA to muzzle Noakes. Emails show otherwise. She said her only motivation was  “horror” at the advice he gave to the breastfeeding mother.  Strydom said she believed that the advice he gave could have harmed the infant had the mother followed it.

She joined other witnesses saying that his tweet was “not evidence-based”.

Like all the HPCSA’s expert witnesses. Strydom seemed unaware of compelling evidence on efficacy and safety of LCHF for a range of serious diseases.

Advocate Joan Adams

Advocate Joan Adams

In cross-examination, Van der Nest poked so many holes in her evidence that Strydom became flustered. At one stage, Pretoria advocate Joan Adams, chair of the HPCSA’s Professional Conduct Committee, adjourned 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.

Van der Nest proposed that if Leenstra had been Noakes’ patient then she was Strydom’s patient as well. And the patient of the first ADSA dietitian, Marlene Ellmer, to respond.

Strydom had gone further. She 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 “supersession”. That’s 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.

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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. That breached the HPCSA’s rule of conduct. It 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 on that point as well.

Van der Nest said 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. She answered no. He responded: “So only Professor Noakes should be charged for his opinions?”