NOAKES TRIAL: HPCSA FAILS TO CLIP ‘ANGELS’ WINGS

Tim NoakesBy Marika Sboros

The first day of the fourth session of the nutrition trial of scientist Prof Tim Noakes resumed on a note of high drama in Cape Town today. As I thought it might do, the Health Professions Council of South Africa (HPCSA) tried to stop Noakes calling two of his three expert witnesses. However, it failed – as I also thought it would.

The HPCSA also tried and failed to stop Noakes introducing new evidence in his own defence. 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 that Noakes had rights according to the Constitution and PAJA (Promotion of Administrative Justice Act) to call witnesses and give evidence in his own defence. Legal experts describe PAJA as “the cornerstone of administrative law in SA”

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.  Dr Caryn Zinn, a New Zealand-based  dietitian academic and the third witness, was on the list from the start. The public have dubbed them “Tim’s Angels”.

Dr Zoë Harcombe

Dr Zoë Harcombe

The HPCSA has charged Noakes with “unprofessional conduct for giving unconventional advice to a breastfeeding mother on a social network”. (Click here to read background on the HPCSA case against Noakes.)

Adams referred to a High Court ruling, which says that the first duty of disciplinary proceedings is “towards an accused person to try him fairly”. She said that HPCSA hearings were neither civil nor criminal. However, they “leaned towards” the latter.

She said that the charge against Noakes “is a serious charge”, serious enough for the HPCSA to feel it warrants prosecution. It has also warranted high local and international media attention. “The public has a  definite interest in this matter,” Adams said, as do all healthcare professionals, nutritionists, dietitians and “in fact, the general Joe have an interest in this matter”.

Adams said that she originally thought that the hearing would “probably cost a million (rand)” but has, in fact,  “cost millions to date”. The case also has serious consequences for the Health Professions Council and for the respondent (Noakes).

Adams said that 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 started out objecting to the evidence of Harcombe and Teicholz and any new evidence Noakes wanted to introduce on two main grounds. However, he also used a shotgun approach to cover as many other grounds as he could muster.

His first major objection was procedural. Bhoopchand claimed that Noakes was introducing new – and old – evidence too late in proceedings. He contended that  this contravened the HPCSA’s rule (regulation 8). He somewhat quaintly suggested that this would cause “delays” in the hearing and that  this would not be in Noakes’ interests – or the HPCSA’s.

Bhoopchand complained of a “deluge” and “burden” of evidence from Noakes. He said that this would  be a “burden” for Adams and her committee. If Noakes were  allowed to give more evidence, this would increase the “burden” further. He contended that this would  prejudice the HPCSA, and Bhoopchand claimed that wouldn’t be able to cross-examine Noakes properly.

Nina Teicholz

Nina Teicholz

Bhoopchand’s second major objection was around relevance and in particular Teicholz’s evidence.  “What my colleagues didn’t tell me is that she’s a journalist,” Bhoopchand said, adding that she is “an investigative journalist” (emphasis mine). He said that 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 (formerly the British Medical Journal) said that 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 that the charge was “clear and simple”. Bhoopchand accused Noakes of “ballooning” 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.

Advocates Michael Van der Nest SA, left, and Dr Ravin "Rocky" Ramdass

Advocates Michael Van der Nest SA, left, and Dr Ravin “Rocky” Ramdass

With barely disguised irritation, Van der Nest described Bhoopchand’s objections 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. He pointed out that Noakes’ reputation among his medical peers and the public now lay in tatters.

“When you prosecute someone, don’t be surprised when he fights back,” Van der Nest said, looking directly at Bhoopchand.

He also told himself to “breathe deeply” as he dismissed Bhoopchand’s portrayal of Teicholz as only “a journalist”.  He said that Bhoopchand’s comment was “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,” he 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.  Bhoopchand did not rebut that suggestion.

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. He said that the HPCSA’s own expert witnesses’s testimony disputed this. They showed that the US and UK guidelines were, in fact, crucial elements of the case against Noakes.

Van der Nest said  that Harcombe’s PhD thesis was on the science behind the US and UK guidelines. He said that the HPCSA’s duty was “not to secure a conviction” against Noakes for a tweet nobody reacted to, but to “assist the panel in determining the truth”.

Adams gave a short and concise ruling and used the HPCSA’s own actions and statements in calling surprise witnesses at late stages. Among those witnesses were Stellenbosch psychiatry professor Willie Pienaar, and US-based Prof Jacques Rossouw. However, Rossouw failed to turn up on the day and claimed that couldn’t get permission in time from the National Institutes of Health.

Adams said that advocate Meshak Mapholisa for the HPCSA had pleaded to be allowed to  introduce new evidence and witnesses. Her committee had unanimously granted him that right. Thus, Adams said she was granting  Noakes the same right.