By Marika Sboros
Just when you thought the Health Professions Council of South Africa (HPCSA) hearing against scientist Prof Tim Noakes couldn’t plunge deeper down the rabbit hole, it does.
The first day of the February 8, 2016 session included sensational claims of the HPCSA’s routine – and illegal – use of secret reports to charge health professionals who don’t toe the official medical line.
There were also references to the HPCSA, doctors and dietitians playing “cat ‘n mouse” games with Noakes.
For starters, members of the HPCSA’s own committee investigating the original complaint against Noakes appear to have indulged in “highly irregular actions” before deciding to charge him. That’s according to evidence that Johannesburg lawyer Michael van der Nest SC placed on the record at the hearing.
The chair of the HPCSA preliminary inquiry committee was a professor of medical bioethics at the University of the Witwatersrand, Amaboo “Ames” Dhai. Van der Nest said that an email chain of correspondence showed that Dhai and all committee members went beyond their remit in deciding whether or not the complaint against him had any merit at all.
They all appeared keen not just to charge Noakes but to ensure that the case against him succeeds.
Click here to read: Legal team fights ‘trial by ambush’
The hearing heard that Dhai has still not given reasons for her committee’s decision to charge Noakes. That’s despite her legal obligation to do so. The Chair of the HPCSA Professional Conduct Committee that is hearing the charge against him, Pretoria advocate Joan Adams, adjourned the hearing till today, February 9.
That followed a request from Van der Nest for a ruling from Adams and her committee based on the conduct of Dhai and her committee. Van der Nest asked for the HPCSA to instruct Dhai to reasons for her committee’s decision and documentation on which it based that decision.
One would have thought Dhai would have done that without being told to. Or that her committee members would have spotted the oversight and suggested that she doed so. However, the email chain shows that they did not. As a result, their actions have looked increasingly suspect.
Dhai is director of the University of the Witwatersrand Steve Biko Centre for Bioethics at the Faculty of Health Sciences. Her fellow committee members included UCT professors John Terblanche (surgery) and Denise White (psychiatry).
Van der Nest told the hearing that Noakes’ instructing attorney, Adam Pike of Pike Law, sent documentary evidence of “irregular conduct” to HPCSA registrar Dr B Mjamba-Mtshoba. Mjamba-Mtshoba replied that she had no power to intervene. Thereafter, she said that Noakes’ defence team should seek a ruling from the Professional Conduct Committee.
Click here to read: Could cardiologists be at the heart of the Noakes trial?
Van der Nest took the committee through a brief history of the background to the Fourth Preliminary Inquiry Committee. He gave detailed evidence of irregularities.
Van der Nest noted that on May 4 2015, Pike had addressed a formal “discovery” notice to the HPCSA asking for written reasons for the committee’s decision to charge Noakes. He drew attention to the HPCSA’s formal response. The HPCSA said that it would only disclose the reasons at a pre-hearing meeting on May 28, 2015. Van der Nest noted that to date, the HPCSA had not done so.
HPCSA in denial mode
Not surprisingly, the HPCSA’s new advocate, Dr Ajay Bhoopchand, claimed that Adams and her committee had no power to make the rulings Van der Nest was requesting. Bhoopchand said that Noakes’s only redress was the High Court for a review of Mjamba-Mtshoba’s decision.
Van der Nest was only relatively restrained when he dismissed Bhoopchand’s contentions out of hand. He said that the HPCSA was “playing games”. It was trampling on Noakes’ rights by sending him from “HPCSA pillar to post”.
Adams appeared to agree and criticised the HPCSA’s handling of the case. The hearing was not a “cat ‘n mouse” game, she said.
Ironically, Noakes’ legal team uncovered evidence suggesting the committee’s irregular activities thanks to HPCSA’s own “cat” witness, legal officer Nkagisang Madube. In his evidence, Madube referred in passing to a file containing emailed correspondence between Dhai and her committee. Noakes’ legal team insisted on seeing the file. As a result, the HPCSA was obliged to “discover” (make available) this evidence to Noakes’ legal team.
Bhoopchand attempted to argue that away and prevent the file’s contents from being placed on the record. He claimed the file had fallen into the defence’s hands “inadvertently”. He said that it contained emails of a “private and personal nature”. Bhoopchand also accused Noakes’ legal team of breaching POPI (the Protection of Personal Information) Act by revealing the contents.
‘POPI no cover for abuse of power’
Van der Nest said that there was nothing inadvertent about HPCSA advocate Meshak Mapholisa’s agreement to hand over the file. He drew attention to the written record. Van der Nest also said that there was nothing personal about the content of the emailed correspondence. All HPCSA committee members received copies. It was clearly in “pursuance of the authors’ duties as committee members”.
Van der Nest also said that POPI was “no cover for abuse of power” by officials conducting public business.
But just what did Dhai and Terblanche (Noakes’ medical colleague at UCT) do that so concerned Noakes’ legal team? Lots, according to emailed correspondence between Pike and Mjamba-Mtshoba. It included incriminating extracts from the contested file covering two main issues:
- The “manner in which the Fourth Preliminary Committee of Inquiry discharged its obligations; and
- The issues in dispute which form the subject matter of the hearing.
Unless you’re a lawyer, the legalese might not mean very much. Essentially, Van der Nest was saying that Dhai involved herself in and interfered with Mapholisa’s preparations of the HPCSA’s case. That was beyond her remit.
For example, she instructed Mapholisa to appoint senior counsel. She also told him to postpone the June 2015 hearing to be “better” prepared. Dhai refused to give Mapholisa reasons for her committee’s decision to charge. Her reason for doing so could not have been stranger.
She said that it was because Mapholisa had not met her demand that he appoint senior counsel. Quite why she expected to be able to instruct Mapholisa in that fashion was anyone’s guess. Dhai has refused all emailed requests for comments.
Wits Vice Chancellor Adam Habib did reply to an email saying that she “denies any wrongdoing”. However, if you are a lawyer, you will know why her silence simply adds to the impression of irregular conduct.
Van der Nest pointed out that Dhai and her committee’s job was complete on September 10, 2014. They had established the “point of inquiry” – the legal term for the essence of the charge against Noakes. Thus, they should have patted themselves on the back for a job well done.
They should have simply returned to their day jobs in academia.
Red flags flying
Instead, they displayed what from Noakes’ legal team’s perspective looked suspiciously like disproportionate dedication to ensure that he was charged and found guilty. That raised red flags legally and ethically even if you aren’t much of a Noakes fan.
Another example: in an email Terblanche shows what can look like initiative. He told the committee that he asked UCT colleague Prof Wim de Villiers to be an expert witness against Noakes.
De Villiers, now Rector and Vice-Chancellor of Stellenbosch University, was head of UCT’s Faculty of Health Sciences at the time. He was the also a signatory of a letter UCT academics sent on August 22, 2014 to the media.
The letter’s authors, including UCT nutrition academic associate professor Marjanne Senekal, attacked Noakes for making “outrageous unproven claims about disease prevention”. In the end, the HPCSA did not call De Villers as a witness. He isn’t saying why but I’m told that he declined to appear. He has refused all emailed requests for comment.
Going beyond remits
Senekal is now a consultant to the HPCSA legal team to prepare for when the hearing resumes in October.
Terblanche also made available the UCT academics’ letter available to the committee. On email, he helpfully suggested that it be included as evidence against Noakes. Van der Nest said that this was all behaviour beyond Terblanche’s remit.
What has also puzzled Noakes’ legal team is why the Fourth Preliminary Inquiry Committee met twice before charging Noakes. After all, on the surface, the case against him did not appear to be complicated.
At its first meeting on May 22 2014 , the committee took two days to consider the original complaint, which Johannesburg dietitian Claire Julsing Strydom laid against Noakes and his response. Strydom was president of the Association for Dietetics in SA (ADSA) at the time. The committee set a date for a second meeting that only took place in September 2014.
Of course, the committee had every right to seek further documentation before charging a fellow doctor with unprofessional conduct. That is, after all, a serious charge usually reserved for doctors who are fraudsters, sexual molesters or murderers.
However, the timeline has suggested why the committee did not have enough evidence to pin a charge on Noakes in May 2014. It also suggested why the committee needed to wait until September 10, 2014 to meet to nail Noakes.
The timeline shows that after the committee’s first meeting in May 2014:
- The committee procured the secret report from retired NorthWest University nutrition professor Este Vorster (who later gave expert testimony against Noakes). In it, she refers to a draft press release relating to an upcoming review and meta-analysis. As a result, Vorster’s analysis purported to shows that Noakes’ views on nutrition are incorrect;
- The medical journal PLOS (Public Library of Science) ONE published a systematic review and meta-analysis of the evidence for low-carb diets in July 2014. It has become known as The Stellenbosch Review. The researchers are from Stellenbosch, UCT and Liverpool Universit in the UK. The authors include Celeste Naude, Marjanne Senekal, and Jimmy Volmink;
- On July 9, 2014, ADSA, the Nutrition Society of South Africa, the Heart and Stroke Foundation of SA, Chronic Disease Initiative for Africa and the HPCSA Professional Board for Dietetics and Nutrition released an unembargoed joint press statement on the meta-analysis; and
- On August 22, 2014, the UCT Faculty of Health Sciences released the academics’ letter attacking Noakes .
Institutions that collaborated on the Stellenbosch Review include UCT, Stellenbosch University, the Medical Research Council and the Effective Health Care Research Consortium. Armed with this ammunition, the preliminary committee charged Noakes on September 10, 2014.
Luck or good judgment?
All that evidence falling into Dhai’s lap could just have been good luck. However, given the conduct of the HPCSA so far, Noakes’s legal team believes it could signal something a little more co-ordinated. And while it could just be coincidence, they suggest that the timing of the UCT letter is also suspect.
Interestingly, the HPCSA only informed Noakes of its decision to charge him three months later. Therefore, it had a three-month head start. Despite that, the HPCSA’s case hasn’t exactly seemed like a slam-dunk.
Noakes’ legal team has concerns at the influence of UCT and Stellenbosch academics on the conduct of the HPCSA Fourth Preliminary Committee Inquiry. Van der Nest also alluded to the possible involvement of the South African Medical Association (SAMA) in the prosecution of Noakes.
Dhai and Terblanche have held leadership positions in SAMA and White is its current president.
That concern is reasonable enough, given SAMA’s public antagonism to LCHF. SAMA attempted to withdraw CPD accreditation from speakers at the Old Mutual Health Convention that focused on the science behind low-carb, high-fat in February 2015. That was after requests from ADSA dietitians. However, after terse correspondence with Pike, SAMA reinstated the CPD points – and even added two more.
Bhoopchand, as expected, has dismissed any suggestion of SAMA involvement or untoward involvement of anyone at all.
Adams will give her ruling when the hearing resumes today.
- All doctors and professors named in this report have right of reply. All contacted so far have chosen to remain silent.
- Main image of Prof Tim Noakes by ROB TATE