By Marika Sboros
The first day of the nutrition trial of South African scientist Prof Tim Noakes resumed on a note of high drama in Cape Town today. The Health Professions Council of South Africa (HPCSA) tried and failed to stop Noakes calling two of his three expert witnesses.
The HPCSA also tried and failed to stop Noakes introducing new evidence in concluding his evidence in chief. Pretoria advocate Joan Adams, chair of the independent committee hearing the charge against Noakes, dismissed all the HPCSA objections. Here’s what she had to say:
Adams said Noakes had rights according to the Constitution and PAJA (Promotion of Administrative Justice Act, which is described as “the cornerstone of administrative law in SA”) to call witnesses and give evidence in his own defence.
The two witnesses the HPCSA tried to block are: British obesity researcher and public health nutritionist Dr Zoë Harcombe and US science journalist Nina Teicholz. Along with Dr Caryn Zinn, a New Zealand-based dietitian academic, the public has dubbed Harcombe and Teicholz “Tim’s Angels”.
The HPCSA has charged Noakes with “unprofessional conduct for giving unconventional advice to a breastfeeding mother on a social network (Twitter)”. (Click here to read more background on the HPCSA case against Noakes.)
Adams referred to a High Court ruling that says the first duty of disciplinary proceedings is “towards an accused person to try him fairly”. She said HPCSA hearings were neither civil nor criminal, though they “leaned towards” the latter.
She said the charge against Noakes “is a serious charge”, serious enough for the HPCSA to feel it warrants prosecution. It has warranted high local and international media attention. “The public has a definite interest in this matter, as do all healthcare professionals, nutritionists, all dietitians and in fact the general Joe have an interest in this matter.”
Adams said she originally thought the hearing would “probably cost a million (rand)”. It has in fact, “cost millions to date and it has serious consequences for the Health Professions Council and for the respondent (Noakes)”.
Adams said her committee’s unanimous ruling was that Noakes could call Harcombe and Teicholz. He also had the right to introduce new evidence.
Advocate Ajay Bhoopchand certainly did his best on behalf of the HPCSA. He started out saying the HPCSA was objecting to the evidence of Harcombe and Teicholz and any new evidence Noakes wanted to introduce on two main grounds. Then he used a shotgun approach to expand creatively on as many other grounds as he could muster.
His first major objection was procedural. Bhoopchand claimed Noakes was introducing new – and old – evidence too late in proceedings. He said this contravened the HPCSA’s rule (regulation 8). He somewhat quaintly suggested this would cause “delays” in the hearing, which would not be in Noakes’ interests – or the HPCSA’s.
Bhoopchand complained of a “deluge” and “burden” of evidence Noakes had presented so far. He said this would be a “burden” for Adams and her committee. If Noakes were allowed to give more evidence, this would increase the “burden” further. This would prejudice the HPCSA, and he wouldn’t be able to cross-examine Noakes properly.
Bhoopchand’s second major objection was around relevance. He attacked Teicholz’s evidence in particular. “What my colleagues didn’t tell me is that she’s a journalist,” Bhoopchand said, “an investigative journalist” (emphasis mine). He said Teicholz just “writes books about science in layman’s terms”.
Teicholz is author of The Big Fat Surprise. The book is regarded as a seminal contribution to the understanding of nutrition and disease and nutrition science politics. Especially relevant is that Teicholz documents the politics, personalities and history of the demonisation of dietary fat.
The American Journal of Clinical Nutrition and Dr Richard Smith, former editor of the BMJ (British Medical Journal) said all health professionals, doctors, and scientists should read her book.
Bhoopchand also accused Noakes of using the hearing as“forum” for his views on low-carb, high-fat. He appealed to Adams to put a stop to that and get the hearing “back on track”.
He said the charge was clear and simple, but Noakes had “ballooned” the charge to cover dietary guidelines and low-carb, high-fat (LCHF).
Those comments elicited a strong response from Noakes’ Johannesburg advocate Michael Van der Nest SC.
With barely disguised irritation, Van der Nest described the HPCSA actions as “a monumental waste of time”. He said Noakes had “not asked to be prosecuted”. Nor had he asked to have the case hanging over his head, costing millions, for more than two years, and his reputation among his medical peers and the public in tatters.
“When you prosecute someone, don’t be surprised when he fights back,” Van der Nest said, looking directly at Bhoopchand.
He dismissed Bhoopchand’s portrayal of Teicholz as only “a journalist”. Van der Nest told himself to “breathe deeply” before describing that comment as “perhaps an insult to a witness who has spent time at Yale and Stanford and Oxford”.
What was “particularly egregious” about Bhoopchand’s objections, Van der Nest said, was the issue of relevance: “You can only say something is irrelevant if you have read it,” Van der Nest said. He would “bet folding money on it” that the HPCSA’s legal team and all their expert consultants hadn’t read Teicholz’s books or Harcombe’s PhD thesis. Interestingly, Bhoopchand did not rebut that statement.
Advocate Dr Ravin “Rocky” Ramdass for Noakes had earlier described as “unfathomable” the HPCSA arguments that the evidence of both Teicholz and Harcombe was not relevant.
Van der Nest dismissed Bhoopchand’s contention that Harcombe’s evidence was irrelevant because the charge against Noakes was not about international dietary guidelines versus South Africa’s guidelines. He said testimony of the HPCSA’s own expert witnesses showed that the guidelines of the US, UK and other countries were, in fact, crucial elements of the case against Noakes. He pointed out that Harcombe’s PhD thesis was on the science – or lack thereof – behind the US and UK guidelines.
Van der Nest said the duty of the HPCSA was “not to secure a conviction” against Noakes for a tweet nobody reacted to, but to “assist the panel in determining the truth”.
Adams clearly agreed with the sentiments Noakes’ legal team expressed. Her ruling was short and concise. She used the HPCSA’s own actions and statements in calling surprise witnesses at late stages in the November 2015 and February 2016 hearing, as Van der Nest had done in responding to their objections.
Among those witnesses were Stellenbosch psychiatry professor Willie Pienaar, and US-based Prof Jacques Rossouw. (As it happened, Rossouw failed to turn up on the day, later claiming he couldn’t get permission in time from his employers, the National Institutes of Health.)
Adams said advocate Meshak Mapholisa for the HPCSA had eloquently pleaded to be allowed to conduct his case as he saw fit and introduce new evidence and witnesses. Her committee had unanimously granted him that right. It granted Noakes the same right.
Noakes continued his evidence in chief. The hearing continues.