Noakes trial: dietitians trying to avoid finger of justice?

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

By Marika Sboros

Are the dietitians behind the prosecution of Prof Tim Noakes attempting to distance themselves to avoid the legal consequences if the ruling in his trial goes his way? Lawyers acting for Noakes have introduced documents that suggest that’s the case.

The last day of the Health Professions Council of SA (HPCSA) latest hearing session against Noakes ended on a dramatic note in Cape Town on October 26, 2016. 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 objected vociferously but failed 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.

Query or 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 in 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 October 18, 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 that 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”. The problem for ADSA and  Strydom is her own testimony. It contradicts all ADSA’s claims.

Click here to read The HPCSA Inquiry: Frequently Asked Questions. 

Tweet that started it all

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

Dietitian Claire Strydom
Dietitian Claire Julsing Strydom

Strydom immediately tweeted a reply to Noakes that she was “HORRIFIED” and would report him. She did so the next day.

In her letter of complaint to the HPCSA, Strydom said: “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 went 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.”

Dangerous dietary advice?

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

Noakes tweetShe continued, “It especially dangerous to give this advice for infants and can potentially be life-threatening.”

Coupled with Strydom’s testimony, it was clear that she did had lodged a complaint. And from the HPCSA’s first letter to Noakes on February 20, 2014, it was clear that she did so in her personal capacity.

In that letter, the HPCSA informed Noakes of Strydom’s complaint and asked 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 said that ADSA was 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 that 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 that the matter is sub judice. Yet the HPCSA is not a court of law. Thus, the sub judice rule does not apply.

Members in hiding?

Gallager would not release a list of ADSA members or tell me whether any of the dietitian academics helping the HPCSA to prosecute Noakes are ADSA members.

In subsequent correspondence between Strydom and the HPCSA, Strydom asked 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 has raised many questions: why now and why is it 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 prosecutors: (l to r) advocate Meshak Mapholisa, UCT dietitian Marjanne Senekal, advocate Ajay Bhoopchand, attorney Katlego Mmuoe (standing).

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

Bhoopchand 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”.

Letter under scrutiny

He said that 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)”.

Yet legal experts say that if the letter were as prejudicial as Bhoopchand suggests, it clearly warranted further interrogation.

Pretoria advocate Joan Adams, chair of the HPCSA Professional Conduct Committe hearing the charge against Noakes, appeared to agree with that view. She said her committee would have to adjourn to decide whether he could introduce new evidence.

Van der Nest said that Noakes had the right to introduce new evidence as his case was still open.  He said that 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.

Van der Nest also said that he could not argue relevance without referring to its contents, that is, with “one hand behind my back”.

He 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.

Arm-wrestling over a letter

In her ruling, Adams gave the defence a slap on the wrist for introducing evidence at  a “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.

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

For starters, as Noakes’ lawyers explained it to me, if Strydom had only submitted a “query” about Noakes on ADSA’s behalf and not actually reported him, 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”.

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:

Statutory powers

  • 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”

To make a ruling, Adams and her committee had to know whether the HPCSA was dealing with a complaint and not merely a “query”, Van der Nest told me. 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 simple query could have led to a multi-million Rand hearing, 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.

Ruling next year

Adams has adjourned the hearing until April 4, 2017, for heads of argument. Thereafter, she give her committee’s ruling on April 21, 2017.

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

Another issue, as Van der Nest pointed out, relates to the “issues of costs that are also going to arise”. Adams had 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. The HPCSA does not allow for a costs award in disciplinary hearings.

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.

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19 Comments

  1. To be honest, speaking as an outsider, this does make South Africa look. It makes the country look like a bit of a ‘Mickey Mouse’ state where differences of opinion aren’t tolerated. The big problem is that dieticians are not scientists. The one who reported him, Claire Julsing Strydom, can’t handle a difference of opinion. As for the original advice, there’s nothing wrong with it. Indeed, it’s good advice and certainly wouldn’t hurt the baby.

  2. This complaint against Prof Naokes was lodged by Strydom – not by all the dietitians in South Africa who are now dragged into this and discredited up to a sickening point.

    It is NOT about a war between Banting/LCHF advocates and dietictians.
    RDs know the facts and latest research. RDs know all the popular slimming diets through the years, from Atkins, Scarsdale; low GI, LF, fasting, etc, and we have used the ketogenic diet for many many decades.

    RDs prescribe personal diets according to the individual nutritional problem/disease at hand, mostly medical problems, not only weight loss. Yes, and we prescribe real food, healthy natural fat (not HIGH added fat). And we are not “in bed with/ or get incentives from food companies/big food” like Marika Sboros claims to discredit us.

    Ironically, Prof Noakes (not RDs) was the single biggest advocate of a very high-carb diet, carbo-loading and a high-sugar diet. He is the reason many people followed it and are now suffering from obesity and type 2 diabetes after consuming loads of sugar, high-carb foods and sweetened energy drinks – not because RDs prescribed high-carb diets.

    In my 36 (years) of practice, I never believed in or prescribed a high-carb diet, but always warned against it. RDs, like all MDs, and the whole medical world were fooled by the flawed science regarding saturated fats, and we all prescribed low-saturated fat diets. It is important to stay up to date with all the latest research, and to think twice about it. It is easy to fool the medical world with tampered results, and multiple publications of the same flawed “research”.

    I have never received any incentive from, or promoted any commercial product. I have only prescribed diets with healthy natural food, and my clients who followed my advice got excellent results.

    The Real Meal Revolution was just a dusted-off rewritten version of Dr. Robert Atkins’ New Diet Revolution published in 2002. High fat can mean natural healthy fat as part of whole foods. Or in the case of someone without enough knowledge, may be dangerous unhealthy high fat from deep-fat / oil-fried fast food/damaged trans fats, etc. Most people stop thinking when they start eating.

    • Dear Mags, you may be the exception rather than the rule. No one is saying all dietitians are behind this trial. If you are a member, then your Association for Dietetics (ADSA) is now suggesting it never lodged a complaint, nor did its former president Claire Strydom. I find that puzzling. ADSA’s current president Maryke Gallagher has told me on the record that ADSA fully supports the prosecution of Prof Noakes. I’m not sure why the u-turn.

      The dietitians involved here just happen to have close links with food and drug companies. They still dish out unscientific advice, still tell people to make starchy foods the basis of all their meals. Still diabetics to eat carbohydrates, even if only moderately. I find that astonishing advice. UK GP Dr David Unwin says telling diabetics to eat carbs moderately leaves them “moderately poisoned”. He should know. He has saved the NHS more than £45,000 annually in diabetes medication just by telling his diabetic patients to cut the carbs.

      Many have lost fortunes of weight quickly and safely and come off their medication altogether. Yet many dietitians continue to push carbs for diabetics. You have to ask why. I see no evidence that all RDs know the facts and the research. I see many who quote selective research and leave out all the bits they don’t like. That’s not science. That’s a bad case of cognitive dissonance-itis.

      The complaint against Prof Noakes beggars belief, in my opinion. Strydom and ADSA have gone after him because they don’t like what he says. They are seeking to stifle his freedom of speech and scientific debate. I find that offensive.

      I’m encouraged by growing numbers of dietitians who are not prepared to dish out dogma.In my opinion, ADSA has a big PR problem. Its close links with food and drug companies, and doctors in their pay, do it no service at all.

      The cold reality is that food and drug companies do not sponsor organisations that do not say nice things about their products. It is called health-washing. It is a global phenomenon that is simply not in the public interest.

    • Hi Mags

      I would urge you to watch all the YouTube videos of Prof Noakes’ evidence. You are clearly a bright woman and a responsible and thoughtful dietitian. Prof Noakes is not the enemy. He speaks with enormous humility about how he ‘discovered’ the reality of the benefits of a Low Carb High Fat diet late in his career as a result of his own life circumstances.

      He acknowledges that he was wrong in recommending carb loading to athletes, and now, with the benefit of hindsight, re-evaluating his own findings from his early work – he missed the obvious fact that he was insulin resistant because that is not what he was looking for.

      He acknowledges how corporate sponsorship coloured his thinking, made him unintentionally biased. He does not condemn his fellow scientists for mistakes they made in the past, he very humbly accepts that he also made similar mistakes in the past.

      You are a dietitian. I was a paramedical professional (a radiographer). I do not say this with malice. If you or I had the intelligence of Prof Noakes, we would not have been paramedical professionals, we might have been A1 rated research scientists.

      For the past 5+ years, Prof Noakes has turned his huge intellect to the issue of bad dietary advice around the world. He has done a huge public service, challenging the status quo and submitting himself to the dreadful ordeal of this trial – because he is so committed to telling the truth and correcting the bad information that we have been bombarded with for the last 40 years.

      I am quite sure that all dietitians do not give out-dated advice that is not based on the most up to date research, but plenty do.

      Prof Noakes freely acknowledges that his inspiration for RMR came from Atkins. The latest version of the Atkins Diet, New Atkins for a New You is virtually identical to the 2002 version, but Westerman, Volek and Phinney finally undertook proper scientific research, that clearly demonstrated that the diet was actually healthful and sustainable. The Real Meal Revolution is re-packaged to be accessible and interesting to a 21st century audience and it is promoting real food (unlike the present version of the Atkins Diet, with its bars and shakes, meal replacements and celebrity supporters).

      You, and all the other dietitians who are ashamed of the actions of ADSA (and surely that must be the vast majority) need to be loudly and clearly supporting Prof Noakes rather than trying to undermine his work.

    • I think the people (like me!) who criticise dieticians do so from personal experience and that of friends and colleagues, especially diabetics, who have all been told to eat high carb low fat and then when that inevitably fails are told they are “failing to comply” with the diet. Yet when they (and I) ACTUALLY fail to comply with said diet their health improves hugely, and dieticians don’t want to know.

      The complaint about commercial sponsorship is mostly aimed at the deiticians’ organisations (a nice typo which I have decided to keep!) which they have to belong to in order to practice.

      Congratulations on being one of the few who have more sense. Here are some others

      http://integritydietitians.org

      http://bant.org.uk

      https://phcuk.org

  3. In a democracy, you don’t start a trial with unspecified charges with an unclear complainant. Moreover, it doesn’t last three years.

    “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.”

    Nutritionists are as incompetent as they are arrogant. No wonder they can’t even control their own body weight.

  4. Cock up or conspiracy? Who can be sure? Th HPCSA seems REMARKABLY incompetent! It’s an international disgrace.

  5. Unbelievable I cannot believe this circus has been allowed to contiue for as long as it did/will be. The irony in all this is that Ms Strydom and the ADSA have given publicity to the LCHF supporters that money can’t buy and that publicity also extends to the damage done to the reputations dieticians now have not just in South Africa but around the world. Oh and congratulations, for ensuring that two of South Africas universities have been exposed for the questionable data and research that it has produced, tendered in evidence and debunked in this trial.

    What I find unfathomable is that a group of supposedly professional individuals are endeavouring to discredit treatment that will reverse one of the scourges of modern medicine, Type 2 diabetes. You all should hang your heads in shame.

    • You appear to be under the misapprehension that dieticians are interested in health. Their job is to market the most profitable “manufactured foodlike substances” on behalf of their sponsors.

      The trial of Annika Dahlqvist didn’t work well for them but they were undeterred. This trial may end up having the same result. However the successes against Jennifer Elliott and Gary Fetke will I predict goad them on to further attacks, they are gunning for Aseem Malhotra and Rangan Chatterjee in the UK. The nerve of these people, actually improving the health of patients live on TV!

  6. This “trial” appears to have revealed that the current Department of Health’s so-called “prudent diet” has no evidence base. The new nutrition profiling legislation, skewed to low fat & high carbohydrates, may therefore be based on incorrect science and should be immediately reviewed.

    • I’d say that’s exactly what this trial has revealed and more. Particularly, that the diet-heart hypothesis – that saturated fat causes heart disease – has never been proven. It is the pillar on which South Africa’s guidelines are built. Those guidelines closely mirror the US guidelines that this has shown are unscientific in the extreme.

  7. At nearly 70, cynical is my default response to most things in life.

    My understanding is that the Pro Forma Complainant is the de facto mouth piece for ADSA. I have always thought that Ms Strydom lodged the complaint / query / whatever in her capacity as the boss of ADSA. Or did she? Is she still a true believer after having been exposed to the truth as contained in the excellent testimony from those speaking for the respondent? Pretty overwhelming stuff.

    I consider it incredible that ADSA did not immediately share the contents of the offending letter with the Pro Forma Complainant who claims “mischief” and “ambush” in an absolute froth of entertaining high dudgeon. Ya well!

    I would imagine that the respondent team will dissect this matter very thoroughly during the final stage of the hearing, but it is a long wait for those on tenterhooks.

    In the meantime, we, the members of the peanut gallery, can amuse ourselves by speculating:
    • Why the PFC advised Ms Strydom NOT to attend the hearing over most of its fragmented duration. That is my understanding from
    comments in the final stages of Wednesdays session. Curiouser and curioser as Alice would say.
    • If Ms Strydom and / or ADSA were no longer committed to the process in the possible context of cold feet, why did it continue?
    • Why did ADSA not tell the PFC about the offending letter immediately when they received it? Or did they
    • Was the PFC aware of the letter and did they tell ADSA to ignore it?
    • Who is actually playing the fiddle (musical or otherwise) in this motley band?

    It would be interesting to see the current membership roll for ADSA. Do they have current members and do they have Damoclesian apprehensions?

    I now have a better grasp of the concept of “bated breath”. Bring on April 2017.

  8. Claire Strydom writes like a half-educated child. It says a lot that this mediocrity is a former president of the ADSA. This inept and compromised organisation sent the letter to its members in a futile attempt to save face. Suddenly it’s not about evidence-based practice and not about the science. Dear reader, it was just an innocent little query about tweeting. The ASDA seems to work on the basis that its members are stupid and will believe anything. What a useless ‘profession’. They have one thing to advise about and get that one thing disastrously wrong. Of course, the same thing can be said of dietitians around the western world, who seem to be more in favour of sponsors and pharmaceutical companies than public health. But other countries at least produce talented non-conformers, like Zoe Harcombe, who fight the low-fat nonsense. I should give an honourable mention to Caryn Zinn, now fighting the fight on behalf of the public in New Zealand.

  9. What a farce. A waste of time, money and resources for a charge that should never have been dignified. On the other hand, hopefully millions of people will learn about LCHF/Banting as a result of this.

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