NOAKES ‘ENERGISED, WRATHFUL’ AS HPCSA GOES AFTER HIM AGAIN
By Marika Sboros
So, the Health Professions Council of SA (HPCSA) has appealed the not guilty verdict for Prof Tim Noakes. His lawyers are furious and up for the fight ahead. Noakes is “strangely elated”. He says that it will “allow the exposure of much about which the South African public would otherwise have remained ignorant”.
Of course, an appeal was always on the cards. The HPCSA’s legal team has the right of appeal. However, even die-hard opponents of Noakes see it as a vindictive, stupid move. It may come back to haunt the HPCSA and the lone, “horrified” dietitian who started the case against Noakes. And her organisation, the Association for Dietetics in SA (ADSA). And the many other dietitians, doctors and assorted academics involved in his prosecution.
His lawyers call the case against him a persecution. The appeal lends more credence to that. It also feeds speculation of vested interests behind the HPCSA’s failed bid to silence him on low-carb, high-fat (LCHF). The case has lasted more than three years and cost many millions of rands. If the HPCSA pursues its path, as looks likely, it could go on for years and cost millions more. Noakes’ lawyers see it as “more waste of everyone’s time and money”.
All for a single tweet in which Noakes said that good first foods for infants are LCHF.
There are concerns that the HPCSA will load the committee hearing the appeal to get the verdict it wants this time round. The HPCSA is, shown to be riddled with corruption. And Noakes’ lawyers showed how the HPCSA marked its prosecution of him, from inception, by “gross unfairness and injustice, double standards, hypocrisy and by a complete lack of merit”. However, it won’t be a breeze for the HPCSA’s lawyers to continue that in the full glare of social media.
Already, a Cape Town medical doctor has launched a petition to persuade the HPCSA to drop the appeal.
Advocate Joan Adams
They face an energised, wrathful Noakes and his legal “dream” team: instructing attorney Adam Pike, of Pike Law, advocate Michael van der Nest (SC) and advocate Dr Ravin “Rocky” Ramdass. Some have worked pro bono for Noakes from the start. They have said that there is no change to the pro bono status.
The HPCSA’s Professional Conduct Committee also vindicated him comprehensively in Cape Town on April 21, 2017 on strong legal grounds. Committee chair, Pretoria advocate Joan Adams, was only relatively restrained in dismissing the HPCSA’s case against Noakes.
Adams cleared him on 10 points of the charge of unprofessional conduct. She ruled that the HPCSA had failed to prove all three pillars of the charge. The evidence showed that Noakes did not have a doctor-patient relationship on Twitter. His tweet was information, not medical advice. Crucially, the tweet was evidence-based. Adams said the evidence of all Noakes’ experts had “a certain logic”.
Therefore, his tweet was not unconventional, dangerous or life-threatening, as the HPCSA alleged.
Noakes’ lawyers have filed a cross-appeal. Their grounds: Adams wrongly did not rule on an award costs in her committee’s majority (four-to-one) verdict.
Current ADSA president Maryke Gallager claims that the HPCSA did not consult ADSA before lodging the appeal. “We were surprised at the decision but, as it is an HPCSA process, it is their decision to make,” she told me via email.
If that is true, it raises the question why and on who’s behalf the HPCSA’s legal team is appealing. Gallager is on record saying that ADSA “accepts the (not guilty) verdict”. I have asked HPCSA instructing attorney Katlego Mmuoe, of K M Mmuoe Attorneys, for clarification.
Noakes says that the case against him is a witch hunt. Doctors, dietitians, scientists, lawyers and more ordinary mortals who support Noakes globally agree. They have expressed outrage on social media. They greeted the HPCSA’s decision with derision as much as with disbelief and shock. Medical doctors are also querying why the HPCSA is using their fees to go after him on spurious grounds.
Ultra-marathon continues: @HPCSA_ to appeal Advocate Joan Adams’ judgement that was 10-0 in my favour. Ketogenics never tire @MarikaSboros
— Tim Noakes (@ProfTimNoakes) May 11, 2017
Ironically, Noakes says that he would have gone “quietly into the night” after the not guilty verdict. He was looking forward to putting the case behind him. He would also have overlooked the many injustices his lawyers identified in the HPCSA’s case him. Noakes would likely not have renewed his HPCSA registration as a medical doctor. The HPCSA would no longer have been able to help dietitians try to muzzle him. That would have been a small price to pay.
Now, Noakes says that all those involved in the case against him have woken sleeping legal giants. They have also “dug their own graves”.
Noakes’ legal team: (l to r) Adam Pike of Pike Law, Dr Ravin ‘Rocky’ Ramdass and Michael van der Nest (SC).
Pike has indicated that the team will “vigorously pursue all injustices done to (Noakes) during this process”. “They will continue working on this case until we are jointly satisfied with the end result,” Noakes says.
He told journalist Adiel Ismail that he and his legal team see the case as “malicious prosecution and persecution”. The HPCSA’s appeal has opened a “Pandora’s box”.
His lawyers will now actively pursue those who “acted inappropriately”. They will also pursue options for recovery of all his costs from those involved in setting up and continuing the prosecution, he told Ismail.
“We will selectively pursue those issues, which we consider are the most rank.”
Noakes’ lawyers aren’t saying but my guess is that one target is the Johannesburg dietitian who started the case. Claire Julsing Strydom was ADSA president when she lodged her “horrified” complaint against Noakes. The appeal puts the spotlight back on to how she morphed ADSA into the complainant.
Strydom has claimed that she did not collude with the HPCSA to ensure a charge against Noakes. An email chain of correspondence between her and the HPCSA suggests otherwise. In her evidence, Strydom showed that she complained in her personal capacity from the outset. The emails confirm this. Strydom also confirmed it to me in a short email exchange in 2015.
That can seem like a small point. However, the legal implications are big. The appeal makes them even bigger. Lawyers for Strydom, Gallagher and ADSA will likely have explained that to their clients.
@neeran_naidoo @DiscoStew66 @MarikaSboros @ADSA_RD @NSDietitiansSA @DietitianClaire @adsard @ProfTimNoakes And then testified under oath that she laid the complaint on behalf of @ADSA_RD when she did not.
— Jenny van Zyl (@DieticianJenny) April 27, 2017
Gallager will be another target now. Immediately after the not guilty verdict, she was on TV. She made it clear that while Noakes had won the battle, ADSA would continue its war against Noakes and LCHF. That may not have been strategic. Strydom, Gallagher and ADSA may have shown one too many hallmarks of vexatious litigants.
@medfraud_pmh @ProfTimNoakes @MarikaSboros @bigfatsurprise Good luck also getting an answer from @Maryke_WW. This graphic says it all based on her last public statement on this matter. pic.twitter.com/SUSBhwFR7L
— Macro Four (@MacroFour) May 13, 2017
As well, Gallagher (or ADSA) have issued ambiguous press statements. One suggested that ADSA had not made any complaint at all. Instead, ADSA claimed that it had only, and quaintly, “sought clarity” from the HPCSA on doctors’ conduct on social media. The HPCSA has no rules for doctors’ conduct on social media, as Adams ruled. It did not need more than three years to tell Gallager and ADSA that.
The appeal will likely increase the significant backlash against ADSA for going after Noakes on what his lawyers say was Strydom’s “whim”.
Someone is driving the HPCSA legal team’s decision to appeal. Who that is, is not yet clear. Noakes’ supporters on social media have speculated. If the HPCSA does not volunteer who it is, PAIA (Protection of Access to Information Act) applications will reveal all.
HPCSA consultant UCT Prof Marjanne Senekal and witness Dr Muhammad Ali Dhansay
Noakes’ lawyers will now also likely look more closely at University of Cape Town nutrition academic Prof Marjanne Senekal. There are questions around Senekal’s conflicts of interest. And the appropriateness of profiting by becoming a consultant to the HPCSA against Noakes.
Senekal was a co-author of the public attack on Noakes in the “UCT Academics Letter” in 2014. His lawyers consider the letter defamatory. She was also a co-author of the Naude Review. The HPCSA used both as the basis for its charge against Noakes.
UCT has yet to respond on the involvement of Senekal and all other UCT academics in the case against Noakes. He is their former colleague and a distinguished UCT emeritus professor.
Senekal and HPCSA witness Dr Muhammad Ali Dhansay also have links to the International Life Sciences Institute (ILSI). Dhansay’s employer, the Medical Research Council is investigating his links with sugar industries.
In their closing arguments, Van der Nest and Ramdass did a thorough demolition job of the case against Noakes. They took a little over 42,000 words to make their case.
Click here to read: ILSI ‘QUEENPINS’ TRYING TO NAIL HIM
HPCSA advocate Dr Ajay Bhoopchand took nearly three times as many – at just over 104,000 words. He demonstrated a distinguishing characteristic the defence team identified in the way HPCSA had gone about prosecuting Noakes. Every time the HPCSA could not prove a pillar of its case against him – which was often – its legal team “changed tack”. That reflected in Bhoopchand’s arguments.
From alleging a doctor-patient relationship, Bhoopchand suddenly claimed that the HPCSA did not have to prove the relationship. He also argued that the onus was on the defence to prove that a doctor-patient relationship was crucial to the case. And when evidence failed even to prove the existence of a patient, Bhoopchand argued that the whole world reading Noakes’ tweet could have been his patient.
A crucial pillar of the HPCSA’s case was that his tweet was “unconventional”, it constituted “danger” and “harm”, or at least the potential for serious harm. When the HPCSA failed to prove any harm, Bhoopchand argued that the HPCSA did not have to prove harm, just the potential.
He appeared oblivious to the absurdities of the HPCSA’s prosecution of Noakes. It was left to Van der Nest to fill in the gaps. He showed how the HPCSA had prosecuted Noakes as a medical doctor when he did not act as one. It had done so in circumstances where it has not published guidelines relating to the use of Twitter or social media by medical doctors.
“Ultimately, the prosecution amounts to impermissible censorship and an attempt of the worst kind to stifle a constitutionally guaranteed right of freedom of expression,” Van der Nest said.
The HPCSA can withdraw the appeal at any time. That’s unlikely to happen. Those behind it appear resolute – and desperate – in their desire to silence Noakes at all costs. In time, the appeal will reveal who they are and why they want to do so.
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- I have emailed UCT, Senekal and others for comment.
“When the HPCSA failed to prove any harm, Bhoopchand argued that the HPCSA did not have to prove harm, just the potential.” And they proved that how?
Didn’t manage even that yet still the HPCSA goes after him.
So they move the goalposts to something less stringent, say they ‘have’ to prove that – and fail to do so! You would thing that they would be embarrassed about that, but no, they keep coming back for more! I hope the Prof takes them for millions this time!!
It reminds me of the horror movie where the monster comes back to life again after everyone thought it was dead. Still, it seems a curious move to me: there doesn’t seem to be a lot of benefit for them even if they win the appeal, which may be likely if, as I read somewhere, they can determine who’s on the panel hearing the appeal. In the mean time, it’s more publicity and coverage for Professor Noakes and Banting. Perhaps they’re just blinded by outrage. Who knows?
Marika, can you tell us anymore about the nuts and bolts of the appeal procedure? How is the hearing panel put together? What happens next and when?
Will do in upcoming post.
Have enquired. There are no special rules for appeal committees. Same rules and process apply as for ordinary hearings. Appeal Committee will review arguments and findings. HPCSA gets to choose committee again and chair as usual. However, one difference: in appeals, there are only four committee members. Chair has casting vote if there’s a tie, as there often is. Clearly, HPCSA not happy with chair Joan Adams’ comprehensive ruling and the extensive body of law she used to back it up. My opinion is that this makes it likely that the HPCSA will choose a chair it feels will give the verdict it wants this time round. Otherwise, why appeal a verdict from committee members who lawyers and doctors locally and internationally have applauded for their integrity and intelligence? A chair that gives the HPCSA the verdict it wants makes it more likely that HPCSA will give her/him more work in future. It’s a hopelessly flawed system, much like the HPCSA itself. Government task team found HPCSA to be riddled with corruption in 2015. Clearly little has changed.
Thanks, Marika. I really appreciate your coverage on this issue. Do you have any idea about the time frame?
I’d still like to know if there is a way to
send Dr. Noakes some money.
Having sat through nearly the entire hearing I can say that most of those who sat across the room from Tim Noakes and his team seemed to be defined by a single characteristic. They are the type of people who will probably never admit that they are wrong about anything. With that in mind I am not the least bit surprised to hear that an appeal has been lodged. There is something profoundly irrational about all this and I wonder what would happen if Tim simply resigned from the HPCSA and walked away in the full knowledge that he has been acquitted by men and woman who showed real integrity in their deliberations. Why would any self respecting medical professional remain a member of the HPCSA.
This is all rather tragic because hundreds of young medical students and scientists must look at this and wonder if their is any point in building a career in a country that treats essential scarce skills in this fashion. Which begs the question? What are the Ministers of Health and Science doing about this assault on one of SA’s leading scientists.
Please keep us informed Marika
Wish you weren’t so right! But if Prof Noakes did deregister, the HPCSA could – and likely would – hold the appeal anyway in his absence and find against him. Many wouldn’t believe it, of course, but many would.
If Prof Tim Noakes can handle this without being to much disturbed it’s probably a good thing for humanity. Remember Sweden and Dr Annika Dahlqvist who was attacked by the Swedish equivalent to the Association for Dietetics in South Africa (ADSA).
And from the blog of Dr Malcolm Kendrick:
“She was, of course, attacked by the idiots…sorry experts: ‘In 2007, the controversy began when two dieticians pointed out to Sweden’s National Board of Health and Welfare that LCHF dietary advice recommended to diabetic patients by general practitioner Dr Annika Dahlqvist was not compatible with either scientific evidence or conventional practice. However, following a report by diabetologist Dr Christian Berne, Dahlqvist was cleared.’”
I believe this attack was what made LCHF widely known as a healthy diet in Sweden.
If the brilliant Ben Fury unearthed 17 lies from the previous court case, how many will there be this time around?
This beggars belief. The prosecution could only produce a single meta-analysis to support their position, and they had three years to make their case. The defense produced 47 RCTs,11 meta-analyses, and 28 intervention trials among other evidence; i.e. the evidence in favor of LCHF that Claire Julsing-Strydom claimed did not exist (except that it does). What makes these people think they even have a case?
In terms of the actual evidence, they obviously don’t. Is this organization funded by the South African government? If so, I will say without an ounce of reservation that they are engaging in state-funded, state-sanctioned quackery. They are and have been launching an all-out assault against truly scientific, evidence-based assertions, as well as against freedom of speech itself, cloaked in the false aegis of protecting public health. They are contemptible hypocrites, and their so-called expert advice should be ignored.
Hi Arthur, it is difficult to find out exactly who is funding this trial. As a statutory body, the HPCSA is funded by its members’ registration fees and those are high. However, this case is already in the multimillions of rands and will go even higher. It raises the question of what the HPCSA is doing with its members’ money.
Bhoopchand is a maverick lawyer who uses bluster and persistence to force his points – he is, at best, a pettifogger..
He is just doing his job for his client. He will be acting under instruction.
You can’t say he’s been dealt a particularly good hand by his employers! You might say he’s done pretty well to stretch thin gruel this far! 🙂
Scientific evidence, honesty, integrity – if only the HPCSA had any! What they do have in their favour is a stacked deck ! I, like so many, am appalled that Prof Noakes (like Gary Fettke) is so victimised. Petition signed.
I am astounded that this is happening. Don’t these people read what is happening in the rest of the world??? If they do and continue on their way with this appeal they are dumber than what they appear.
Proof that it ISN’T over until the fat lady sings.
Could Joan Adams be called as a defence witness?
I feel so sorry for Professor Noakes.
The HPCSA can try to rig another hearing, but history will damn them. They are unbelievably dumb and if this appeal goes ahead, they will destroy what is left of their tattered reputation. Joan Adams’ verdict was logical and clear. There’s no way it can be credibly reversed, but the HPCSA and ‘credibility’ don’t belong in the same sentence. Even the dimwit ASDA dietitians seem to be distancing themselves from this truly stupid decision.
This way of eating has given me my life back and my husbands his .
Bless Tim Noakes and his family and keep him strong and safe.
He will win in the end because what he says is true and enlightened people all over the world are waking up to the fact you are what you eat and you better eat well!
Prof Tim Noakes is ‘chosen for a time like this’ and he ‘cast his bread on the water but will find it after many days’. (A quote from the Bible.) The truth will always prevail. Petition signed and I’m praying!
Eat carbs, low fat I was told and over years suffered metabolic inflammatory cascade with many diseases involved. Then I found keto, got educated and empowered and am reversing diabetes, hypertension etc etc etc. The interests behind this must be quacking in their boots to be so set on defending themselves, big money gone bad – again. Remember tobacco and it’s defendants?
[…] course, an appeal was always on the cards. The HPCSA’s legal team has the right of appeal. However, even die-hard opponents of Noakes see […]