NOAKES TRIAL: DIETITIANS TRYING TO COVER THEIR BACKS?

Prof Tim Noakes with advocate Michael Van der Nest in the background.

Prof Tim Noakes with advocate Michael Van der Nest in the background.

By Marika Sboros

Are the dietitians behind the trial of Prof Tim Noakes attempting to distance themselves from the complaint to avoid the consequences that may flow if the ruling goes his way? Lawyers acting for Noakes have introduced documents, which seem to suggest that’s the case.

The last day of the Health Professions Council of SA (HPCSA) latest hearing session against Noakes in Cape Town on October 26, 2016, ended on a dramatic note. Before closing his case, Johannesburg advocate Michael Van der Nest SC introduced a letter as evidence regarding the position of dietitian Claire Julsing Strydom and the Association for Dietetics in SA (ADSA) in the charge against him.

HPCSA’s lawyers threw up their hands and objected vociferously but to no avail. They failed in their attempts to block the letter from being entered into evidence. Here’s what went down:

Noakes’ Cape Town lawyer Adam Pike, of Pike Law, wrote the letter to ADSA on October 24. In the letter, Pike asks inter alia:

  • Whether ADSA accepts or disputes that Strydom in fact lodged a complaint against Noakes;
  • Whether Strydom obtained ADSA’s authority to lodge the complaint before doing so; and
  • Whether ADSA fully supports the HPCSA’s continued prosecution of the complaint.
Attorney Adam Pike and candidate attorney Alison Walker, of Pike Law.

Attorney Adam Pike and candidate attorney Alison Walker, of Pike Law.

Pike requested answers from ADSA before the end of the HPCSA hearing on October 26. ADSA did not reply. That was also led as evidence.

The letter follows ADSA’s latest communication with its members during the HPCSA hearing session that began on October 17, 2016. The communique was circulated on 18 October 2016. The defence only became aware of it on Sunday, October 23.

In it,  ADSA tells members that the HPCSA is “currently investigating a query” about Noakes. It says Strydom merely “sought clarity from the HPCSA on the use of social media as a professional medium by health practitioners”.

ADSA also says Strydom “did not call for a hearing”. Click here to read The HPCSA Inquiry: Frequently Asked Questions. The problem for ADSA is Strydom’s own evidence in chief. It contradicts all that.

The HPCSA has charged Noakes, a University of Cape Town emeritus professor,  with unprofessional conduct for giving unconventional advice to a breastfeeding mother on a social network (Twitter). That was for a single tweet on February 4, 2014, in which he tells a breastfeeding mother that good first foods for infant weaning are LCHF (low-carb, high-fat).

Dietitian Claire Strydom

Dietitian Claire Julsing Strydom

Strydom immediately tweeted to Noakes that she was “HORRIFIED” and would be reporting him to the HPCSA. She did so the next day.

In her letter of complaint to the HPCSA, Strydom says: “I would like to file a report against Prof Tim Noakes. He is giving incorrect medical (sic) (medical nutrition therapy) on twitter that is not evidence-based.”

What Strydom did not say is as important as what she did say: She did not say “ADSA would like to file a report…” or “We would like to file a report”.

She also sent the email from her  personal address,  not her ADSA address.

Strydom goes on to say: “I urge the HPCSA to please take urgent action against this type of misconduct as Prof Noakes is a ‘celebrity’ in South Africa and the public does not have the knowledge to understand that the information he is advocating is not evidence-based.”

It is unclear from the letter what “type” of misconduct she is referring to.

Noakes tweetShe continues, “It especially (sic) dangerous to give this advice for infants and can potentially be life threatening.”

Coupled with Strydom’s evidence in chief, it seems clear that Strydom did indeed lodge a complaint. And from the HPCSA’s first letter to Noakes on February 20, 2014, it is clear that she did so in her personal capacity.

In that letter, the HPCSA informs Noakes of Strydom’s complaint and asks for a response. The HPCSA then charged Noakes in September 2014 but only informed him in writing of the charge in January 2015. In that letter, the HPCSA says ADSA is the complainant.

I emailed Strydom last year to ask whether she made the complaint in her personal capacity or as ADSA president. She replied saying she would “prefer” I said she made the complaint from the outset as ADSA president.

I asked for clarification of her use of the verb “prefer”. She declined to answer.

Click here to read: MISTAKE OR MISCHIEF: SCIENTISTS IN PLOT TO NAIL NOAKES?

 

Strydom, ADSA’s current president, Maryke Gallagher, and the HPCSA have since declined to answer all my material questions on the hearing. They claim the matter is sub judice. Yet the HPCSA is not a court of law. Thus, the sub judice rule does not apply. Gallager won’t even release a list of ADSA members, or say whether any of the dietitian academics helping the HPCSA to prosecute Noakes are ADSA members.

In subsequent correspondence between Strydom and the HPCSA, she asks whether “Dr Noakes will only be facing inquiry for the one incident that I submitted or the numerous incidents submitted by ADSA. Are you wanting me at the hearing in my capacity as the President of ADSA?”

ADSA’s message to its members raises the questions: why now and why so different from Strydom’s evidence?

The HPCSA prosecution team after the introduction of new evidence. From left to right: advocate Meshak Mapholisa, UCT dietitian academic Dr Marjanne Senekal, advocate Ajay Bhoopchand, attorney Katlego Mmuoe (standing).

HPCSA prosecution team after introduction of new evidence. Left to right: advocate Meshak Mapholisa, UCT dietitian Prof Marjanne Senekal, advocate Ajay Bhoopchand, attorney Katlego Mmuoe (standing).

The many and vigorous objections from the HPCSA’s advocate, Ajay Bhoopchand, to Pike’s letter shows how seriously he takes the letter’s contents.

Bhoopchand said he objected “strenuously” to the “manner” in which the defence had introduced the letter at such a late stage. He described it as “an ambush”.

He objected on the grounds of relevance and hearsay. Bhoopchand said there was nothing new in the letter. Any urgency was “self-generated” and the defence was just making “mischief”.

He  said the letter was “highly prejudicial” to the HPCSA’s case. It would “far outweigh any sort of evidential benefit that it may have for the respondent (Noakes)”.

If the letter is as prejudicial as Bhoopchand suggests, it clearly demands further interrogation.

Pretoria advocate Joan Adams, who is chairing the HPCSA Professional Conduct Committee that is hearing the charge against Noakes, seemed to agree. She first said her committee would have to adjourn to decide whether he could introduce new evidence.

Advocate Michael Van der Nest SCVan der Nest pointed out that Noakes had the right to introduce new evidence as his case was still open.  He said he could only argue relevance, reject the contention of hearsay and explain why the defence could not have introduced the letter earlier, once the committee had actually read the letter.

He said he could not argue the relevance of the letter without referring to its contents, that is, with “one hand behind my back”.

Van der Nest said that Noakes was not asking to call witnesses to support the evidence. However, the letter covered important issues that both sides would have to argue during heads of argument.

In her ruling, Adams gave the defence a slap on the wrist for introducing evidence at what the committee considered an unacceptably “very late stage”. However, she said South Africa was a democracy. The Constitution and the Promotion of the Administrative Justice Act required that her committee had to try Noakes “fairly and reasonably”.

Thus, she allowed the letter.

Advocate Joan Adams, right, discusses a point with Dr Janet Giddy.

Advocate Joan Adams, right, discusses a point with Dr Janet Giddy.

So why so much “arm wrestling” over the letter, as Adams described it?

For starters, if Strydom only submitted a “query” about Noakes on ADSA’s behalf, then there wasn’t anything for the HPCSA to investigate.

The Health Professions Act (HPA) is the statute that regulates the HPCSA and governs its business. There is nothing in the HPA that compels the HPCSA to investigate a “query”.

A query is a rather banal thing, after all. It is certainly not a complaint.

The HPA empowers the HPCSA to commence investigations in relation to complaints, allegations and charges of unprofessional conduct. There are only two ways in which the HPCSA can institute inquiries into such complaints, allegations and charges:

  • The HPCSA professional board that governs doctors’ conduct has the power to institute an inquiry under the HPA in terms of Reg Sec 41 (1), “A professional board shall have power to institute an inquiry into any complaint, charge or allegation of unprofessional conduct against any person registered under this Act”…. (my emphasis). That is the section under which the HPCSA told Noakes it was charging him;
  • The HPCSA Registrar can on his/her own accord institute an investigation under Reg Sec 41 (A) (5) (c), “If the registrar deems it necessary for the achievement of the objects of this Act, he or she may institute or cause to be instituted an investigation…. into a charge, complaint or allegation of unprofessional conduct by a registered person”

Van der Nest said that to make a ruling, Adams and her committee had to know whether the HPCSA was dealing with a complaint and not merely a “query”. They also had to know who had lodged it.

“It is as simple as that,” he said.

Where there was a process against Noakes, Van der Nest said, it was important for the committee to know where the origin of (a complaint) had been debated with witnesses, the source of it and whether or not that was ADSA.

“Was it merely a query? Have we really gone through this whole process on a ‘query’?  Or is it a complaint and who stands behind the complaint?” he asked.

Certainly, it does seem inconceivable that a mere query could have led to a hearing that has cost many millions of rands – as both Adams and Van der Nest have frequently pointed out. And one that will have dragged on for more than three years before the expected resolution date rolls around next year.

Adams has adjourned the hearing until April 4, 2017, for heads of argument. Thereafter, she and the committee will consider all the evidence and argument. She will give her ruling on April 21, 2017.

My reading of the letter that caused all the trouble? It is seminal. Among the many serious issues it raises are: whether the complaint was laid in good faith and whether all the facts that led to the complaint were put before the committee.

Another issue, as Van der Nest pointed out, relates to the “issues of costs that are also going to arise”.

Adams asked if the application for new evidence had anything to do with “some possible legal suit afterwards”?

Van der Nest replied: “It is costs in these proceedings, for having been put through it, and we will be wanting to make submissions on that.”

The issue of costs is an interesting one. As far as I’m aware, costs are not awarded in disciplinary hearings. I’ve been unable to ascertain why Van der Nest raised the comment about costs. I am also unsure of what the implications of that could be for Strydom and ADSA.

All told, Pike’s letter may be yet another of the many lessons in unintended consequences on social media. These are piling up for ADSA, Strydom and the HPCSA around this unusual trial.