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?
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).
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.
She 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.
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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 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:
- 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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