When is an expert witness not an expert witness? I look at answers to that in the second of a two-part series reviewing the November 2015 session of the Health Professions Council of South Africa (HPCSA) hearing against Prof Tim Noakes. It follows from part one of the review, which looks at what Noakes’ legal team calls ‘trial by ambush’. It explains why the HPCSA felt an urgent need to call surprise last-minute witnesses that led to yet another delay.
By Marika Sboros
The HPCSA has so far called three expert witnesses: former Northwest University nutrition professor Este Vorster, Northwest University nutrition professor and pharmacist Dr Salome Kruger, and paediatric specialist Prof Muhammed Ali Dhansay, now with the Medical Research Council.
In their evidence all supported South Africa’s current official dietary guidelines as “evidence-based”. Vorster, an author of the guidelines, conceded that the guidelines were “vague” but intentionally so.
All gave similar evidence, and evidence beyond their areas of expertise. All went beyond the ring-fenced scope of the charge. In legal terms, say experts, all ventured “beyond the fence”. (For more on that, see Part 1 of this review).
All demonstrated little or no understanding of LCHF. All conflated it with ketosis. Ketosis is a benign metabolic state in which the body uses ketones from fat for fuel instead of glucose from carbohydrates. Interestingly, Ketosis does not appear in the charge. All the experts conflated ketosis with ketoacidosis. Ketoacidosis is a dangerous condition seen mostly in uncontrolled type 1 diabetes, and can be lethal.
All three contended that Noakes was unprofessional in telling the breastfeeding mother to stop breastfeeding. They said this contravened South African and internationally recommended paediatric guidelines promoting exclusive breastfeeding for the first six months. Noakes is on record promoting breast milk and breastfeeding as best for babies for their first two years. And anyway, this does not form part of the charge.
All three had a problem with doctors writing popular books. Kruger clearly disapproved of people wanting to “challenge beliefs” by writing books. Noakes’ memoir is titled Challenging Beliefs. She referred disparagingly to book titles with words like “revolution”. That was a clear reference to Noakes’ The Real Meal Revolution book.
All three experts proved easy meat for Noakes’ dogged advocate, Dr Ravin “Rocky” Ramdass. Ramdass is a medical doctor with 23 years’ experience as a specialist family physician.
Among many concessions Ramdass extracted from Vorster were that she has never practised as a dietitian. Her undergraduate degree was a BSc in home economics. She agreed that she was not qualified to give evidence on medical ethics. She conceded that she was not active on Twitter and knew little about its environment, dynamics and etiquette.
Kruger presented herself as having expertise in medical ethics despite little formal training. She criticised Noakes for lacking expertise in nutrition and for telling Leenstra to stop breastfeeding. Kruger went on at length about “wind” in infants. She said LCHF could cause or exacerbating colic and cramp, despite this not being in the charge.
Under Rocky’s cross-examination, Kruger eventually conceded that Noakes does have expertise in nutrition. She conceded that he couldn’t be expert in sports nutrition without a solid understanding of general nutrition
Ramdass effectively undermined the probity of Kruger’s evidence on Noakes’ ethical conduct with a coup de grace. Kruger could not name all four pillars of medical ethics: autonomy, beneficence, non-maleficence and distributive justice.
Kruger admitted she had written her report in a rush, as she was busy with a research project.
Ramdass elicited from all three witnesses that none matched Noakes’ scientific A1 rating and for expertise in nutrition and sports science. Kruger has a B1 rating, Vorster a C1, and Dhansay no rating at all.
Although Dhansay’s written summary of his evidence referred to ethics, Mapholisa did not lead this. The only inference I could draw was that Mapholisa realised before Dhansay gave evidence that all his expert witnesses were weak on ethics. He would have to do something to plug the gap.
That something came at the close of the fifth day of the hearing when he hinted at calling another witness. Mapholisa’s application for the surprise new witness precipitated one of two bizarre showdowns at the hearing. Firstly, he refused to disclose whether he could call just one witness or any names. He only did so after Pretoria advocate Joan Adams ordered him to do so. Adams is chairing the HPCSA Professional Conduct Committee hearing the charge against Noakes.
An exasperated Adams told Mapholisa that the HPCSA hearing was not like Ally McBeal. That was a reference to the American TV legal series in which surprise witnesses turn up at the last minute to save the day.
She reminded Mapholisa that South African law was based on openness, transparency and democratic principles. She said the interests of fairness and justice required that he divulge witnesses’s names to Noakes’ defence team.
The second tussle on the final day of the hearing was even stranger. It concerned an HPCSA file that Madube referred to and thus made part of evidence.
As the file was not in the defence’s “discovery” – the legal term for making relevant information available – Van der Nest requested access. Mapholisa agreed. The file was large. Van der Nest said the defence needed copies as there was no time to go through all the pages before the hearing was adjourned till next year. Mapholisa and Madube became agitated and attempted to prevent the defence from making copies.
Adams once again intervened. She said the interests of fairness and transparency required that Van der Nest and his team make copies. She said the HPCSA team could watch the defence make copies, which they did.
Mapholisa’s surprise witness turned out to be surprising, though perhaps not as he may have intended. It was Stellenbosch professor Dr Willie Pienaar, a psychiatrist with a master’s degree who lectures part-time in applied bioethics.That raises yet another uncomfortable question: with so many professors of bioethics in SA, why an ethics lightweight such as Pienaar?
An increasingly exasperated Van der Nest objected to Mapholisa’s application, describing it as “trial by ambush”.
He questioned the need for yet another witness on ethics, since all three of the HPCSA’s witnesses claimed the necessary expertise. He said the HPCSA’s regulation required that the defence team be given at last seven days notice of a new witness.
The committee unanimously agreed to Mapholisa’s application. That led to the adjournment till February 2016 to give the defence time to prepare for cross-examination.
On the last day of the hearing, Van der Nest spoke eloquently about the HPCSA’s delays and procedural irregularities. He said these had seriously prejudiced Noakes. The hearing had taken its toll on Noakes not just financially, but emotionally. Being charged by his own professional body had also significantly damaged his reputation.
HPCSA regulations did not allow adverse cost orders against it. However, Van der Nest said a cost order could not cure the prejduice Noakes had suffered.
Noakes has spoken in interviews of the significant burden of the trial. The financial cost has been high, he said, despite his legal dream team acting pro bono from the outset.
“They have saved me at least around R3 million,” Noakes told me. “I can never repay them not just for that, but for all the moral and emotional support they have given me.”
The hearing continues to cause speculation over why the HPCSA appears so determined to prosecute Noakes. It has not shown the same determination on other important issues. Its Annual Report 2011/12 lists among issues flagged for the HPCSA’s Dietetics and Nutrition Board’s attention, the “employment of dietitians by private institutions such as Nestle, Kellogg’s etc”. On Page 55, it refers to a resolution relating to the “improvement and quality of clinical and professional education and professionalism of dietitians”. The HPCSA has ignored these.