By Marika Sboros
Here’s an intriguing ethical and moral dilemma in the latest issue of the SAMJ (South African Medical Journal).
It’s in an article by University of the Witwatersrand bioethics head Prof Amaboo “Ames” Dhai. The title: The Life Esidimeni tragedy: Moral pathology and an ethical crisis.
In it, Dhai speaks of “core values of compassion, competence and autonomy”. Together with respect for fundamental human rights, these are “the foundation of ethical practice in healthcare”, she writes.
But why is that an ethical, moral dilemma and for whom? Well, for starters, for Dhai herself.
And the why becomes clear when you know the broader context in which she writes. And when you know her involvement in a vexed case that captured world attention. It’s the trial of world-renowned University of Cape Town emeritus professor Tim Noakes.
First things first. Life Esidimeni refers to a real-life ethical and moral shocker involving the private healthcare provider in 2016. It follows the deaths of 144 psychiatric patients after Gauteng health officials removed more than 1700 from Life Esidimeni facilities.
They relocated patients under subhuman conditions to ill-equipped, underfunded NGOs (non-governmental organisations).
One of South Africa’s most respected judges, Dikgang Moseneke, called the conditions “torturous”. He wasn’t overstating the case.
The aim was supposedly cost-cutting and a policy of “deinstitutionalising” psychiatric patients. It was a true horror story.
Moseneke, a former Deputy Chief Justice, presided over the arbitration that followed. He also produced a 93-page report that one writer called a “brilliant and tormented account” of the removal.
Authorities transported patients on backs of trucks like cattle. Some patients did not receive medication. Others appeared to have starved to death.
Moseneke spoke of “death traps” and “torture sites”. He evoked images of Nazi death camps. He could find no justification for relocation of patients.
But I digress and the question remains: where’s the ethics problem for Dhai?
After all, she writes articulately that the Life Esidimeni scandal highlights “several ethical transgressions”. It also tests health professionals’ ethics by “balancing their own interests against competing claims”.
And health care practitioners have a duty to “act responsibly and be accountable for their actions”. Thus, Dhai says, “codes in healthcare serve as a source of moral authority”.
Crucially, she comments on health professionals’ conduct: If they “choose to support state interests instead of those of patients, problematic dual-loyalty conflicts arise”.
So far, so good. But where’s the problem for Dhai’s ethics?
Well, she could have been writing about herself. Her own problematic, dual-loyalty conflicts and ethics showed up in her conduct during Noakes’s trial.
Before I go further, let me declare my interest – which I don’t see as any kind of conflict. I am co-author with Noakes of Lore of Nutrition, Challenging Conventional Dietary Belief. In it, we document the HPCSA’s hearing against him and what preceded it.
We also carefully document evidence on the hearing record suggesting highly “irregular” (a euphemism for unethical) conduct by doctors. And dietitians and university academics involved in the case against him. Dhai is high up on the list.
It is well-known by now that the HPCSA charged Noakes with unprofessional conduct for a single tweet in February 2014. It is also well-known that Noakes tweeted that good first foods for infants are LCHF (low-carb, high-fat). And that his tweet so “horrified” Johannesburg dietitian Claire Julsing Strydom, she reported him to the HPCSA within hours.
Strydom was president of the Association for Dietetics in SA (ADSA) when she reported Noakes. Her and ADSA’s opposition to Noakes and LCHF is also well-known.
Click here to read: Noakes exposed: real beef dietitians have with him!
What is less well-known but well-documented in our book is Dhai’s key role in Noakes’s trial. She chaired the HPCSA’s Preliminary Inquiry Committee. The committee is its first port of call in deciding if a complaint against a doctor warrants a hearing.
On the committee with Dhai were UCT surgery professor John Terblanche and psychiatry professor Denise White (now deceased). All were also office bearers of the South African Medical Association (SAMA). More on SAMA below.
Hats on, hats off
Their task was simple enough. They had to consider Strydom’s complaint. Thereafter, they had to decide whether the HPCSA should charge him. And if so, with what.
Once they had done that, they were functus officio – the legal term for “their job was done”. In other words, they should have taken off their HPCSA hats and gone back to their day jobs.
Instead, Dhai and Terblanche put on their thinking caps and hung around.
Yet Dhai could have nipped the whole thing in the bud, there and then. After all, she had no evidence to persuade the HPCSA to charge Noakes. She should have admitted that and dismissed the complaint. That was the right, ethical thing to do.
Instead, behind closed doors, she started looking for evidence. That on its own suggests something dodgy since it wasn’t her remit.
Of course, if Dhai really believed that Noakes was a danger to babies’ (or anyone’s) lives and limbs, it made sense to dig deeper. But she has never explained her actions.
Dhai commissioned a report from NorthWest University nutrition academic Hester “Este” Vorster. It was highly critical Noakes – which wasn’t at surprising. If Dhai had done even basic research into Vorster’s ethics, she would have found a treasure trove of conflicts.
Vorster’s antipathy to LCHF is well-known. So are her links to the sugar industry. And of course, Vorster wrote South Africa’s high-carb, low-fat guidelines. The ones that food and drug industries feed off. The same guidelines that LCHF threatens.
One would have thought that both Vorster and Dhai would know she was heavily conflicted. And that she was biased against Noakes from the start.
But Dhai was on a mission. Once she had procured the report she based the committee’s decision to charge him on it. Inexplicably, she kept the report secret from Noakes. She and the HPCSA may come to regret that. Because, in doing so, Dhai breached the HPCSA’s rules for its ethics. And presumably also her own, as she is well-versed in law and medical ethics.
Click here to read: Will academic ‘mobsters’ silence Noakes?
She breached a common law principle, say legal experts. It is that all accused persons have the right to see all evidence against them before being charged.
It didn’t help that Vorster’s report turned out to be flawed and unscientific. But that’s neither here nor there.
(Editor’s note: Dhai ignored all emailed requests for comment. The only comment came from Wits University VC Prof Adam Habib. He said that Dhai had assured him of “no wrongdoing”. I replied to say that’s not how serious accusations against academics work. The university has an ethical responsibility to investigate. And preferably with an independent panel.)
Still, the minutiae of what Dhai and her committee got up to against Noakes is on public record. It makes fascinating reading. It showed up in evidence that landed serendipitously in the laps of Noakes’s lawyers. We document it all in Lore of Nutrition.
It revealed an incriminating chain of emailed correspondence. It shows that Dhai and Terblanche went way beyond their remit to ensure that the HPCSA charged Noakes. And to influence the case against him.
Click here to read: Were doctors playing cat ‘n mouse with him?
Thereafter, the HPCSA waged war on Noakes under Dhai’s able direction on the dietitians’ side. On its own, that’s ethically suspect. HPCSA hearings are supposed to be dispassionate inquiries into the truth of a matter.
There was nothing dispassionate about the way the HPCSA went after him.
Despite that, the HPCSA could only muster an army of low-level doctors, academics and dietitians as witnesses against him. And it took more than four years and spent more than R10million trying and failing to find Noakes guilty of anything at all.
Where are the ethics?
In April 2017, the HPCSA’s own Professional Conduct Committee comprehensively vindicated Noakes in a majority four-to-one ruling. Committee chair, Pretoria advocate Joan Adams (now SC), read a 60-page ruling that acquitted Noakes on all 10 aspects of the charge against him. Adams and most of her committee saw right through the HPCSA’s intentions. As well as those of all its acolytes.
But they are all professionals and they kept to the charge at hand.
The HPCSA took little time to announce an appeal agains the not-guilty decision and held a hearing in February 2018. In June 2018, its Appeal Committee unanimously dismissed the appeal and confirmed the not-guilty ruling.
Ironically, the Life Esidimeni tragedy featured in Noakes’s trial. It popped up at the appeal stage after HPCSA advocate Ajay Bhoopchand introduced it. He was trying to prop up one of the weakest, though arguably most crucial, pillars of its case against Noakes: the doctor-patient relationship.
Bhoopchand did the same thing first time round by comparing Noakes’s case to the man the media dubbed Dr Death. That was apartheid-era cardiologist Dr Wouter Basson, who ran the National Party government’s chemical weapons programme. Basson devised poisons that the regime used to eliminate opponents.
Noakes’s counsel, advocate Michael van der Nest (SC) was not impressed with the comparison. He was only relatively restrained but openly contemptuous in dismissing it.
Bhoopchand did himself no favours by repeating the Basson comparison and adding Life Esidimeni to the toxic mix in appeal.
His logic, from my perspective, was tortuous. Thus, he kept trying to make the case about ethics when it was really about the science for LCHF – which he kept raising and knocking at every turn.
Bhoopchand was suggesting that it didn’t matter if Basson and Life Esidimeni doctors were not directly involved in patients’ deaths. The authorities could still prosecute them.
It became a prime example of the semantic gymnastics Bhoopchand performed as the HPCSA’s case disintegrated around his heels.
It took me some time to work out where Bhoopchand was going with the Life Esidimeni comparison.
Van der Nest took no time at all to work it out – and stop Bhoopchand in his tracks.
Both comparisons were “utterly inappropriate”, Van der Nest said. No one died, was poisoned, tortured or subjected to horrendous conditions as a result of Noakes’s tweet.
To equate the treatment of those patients to Noakes’s tweet “is an aberration of analysis”, Van der Nest said. “It just simply does not apply.”
An exasperated Van der Nest later said that the HPCSA had “lost its way” when prosecuting Noakes.
The HPCSA was not alone in losing its way. In supporting the interests of a state body, Dhai may have helped the HPCSA lose its way – as she lost hers.
Another problem for Dhai is overwhelming evidence that Noakes’s trial was a sham. In other words, it was a set-up. And that Strydom was just a disgruntled dietitian with turf to protect. And that she used Noakes’s tweet as a pretext to persuade the HCSA to go after him.
Both the HPCSA and Dhai have left a mountain of evidence of uncontested and not just against her. The HPCSA also left uncontested the mountain of evidence of dodgy dealings and academic bullying or “mobbing” of Noakes.
Academic mobbing is unedifying and not restricted to South Africa’s top universities, Wits, UCT and Stellenbosch. It is an ugly, global phenomenon.
It doesn’t fully explain how Strydom got the might of a statutory body to prosecute a distinguished scientist just for his opinions. But it goes some way to explaining it.
And while Dhai was a main driver of the case against Noakes, we expose her many helping hands. In our book, we give evidence of “highly irregular” conduct by a long list of doctors, academics and dietitians.
That’s legal speak for unethical, immoral and possibly even unlawful conduct.
Noakes’s instructing attorney, Adam Pike, uncovered other evidence suggesting that the stitching-up of Noakes began earlier. It showed up in a PAIA (Protection of Access to Information Act) request Pike made to ADSA in June 2017.
It revealed an incriminating email chain between HPCSA Dietetics Board head Prof Edelweiss Wentzel-Viljoen, Strydom and another ADSA dietitian, Maryke Gallagher. And it shows them communicating in the weeks before Noakes’s 2014 tweet.
Strydom and Gallagher, a Woolworths consultant, appeal to Wentzel-Viljoen for help in silencing Noakes on LCHF. They cite the adverse effects on the orthodox dietetics profession.
In one email, Wentzel-Viljoen calms the increasingly frantic dietitians. She helpfully tells them that the HPCSA “has a plan for Noakes”.
Like Dhai, Wentzel-Viljoen has never explained how she squares that with her own ethics. Or her subsequent behaviour when she tried to get onto the panel hearing the charge against him. She only stood down after repeated requests from Pike.
Ethics delivery problem
For Dhai, the ethics here are really very simple. You can’t just say all the right things in public –which she does with monotonous regularity. You have to do the right things as well. And not just in public but behind closed doors.
Behind closed doors at the HPCSA, Dhai had a delivery problem on that score.
As SAMA president in 2013, she spoke of “the need to maintain extremely high professional standards”. She also said that continued divisions in the medical community “don’t do anyone any good”.
“We must ensure that the health profession becomes united as one body,” Dhai said.
SAMA’s track record as a unifying force for the medical profession is dismal. And if the number of its members involved in Noakes’s trial is anything to go by, SAMA dislikes doctors who challenge dogma.
Like most of SAMA leadership, Dhai stayed silent when doctors made venomous and defamatory attacks on Noakes on social media. She and they have also ignored online attacks by doctors on local and international MDs and dietitians who support Noakes and LCHF.
I did manage to find one brave, dissenting SAMA voice: gynaecologist and obstetrician Dr Dan Ncayiyana.
Ncayiyana was SAMJ editor for two decades and SAMA president in 2017. In article in its Insider magazine last year, he called Noakes’s trial a “spectacle”. The headline was even more disparaging: What was all the kerfuffle about?
He rightly questioned the “wisdom and appropriateness” of the HPCSA “consenting to get embroiled” in the case. It was, “foreseeably, a scientific rather than an ethical dispute”.
It “very quickly became clear that the (trial) had little or nothing to do with the tweet per se”, Ncayiyana said.
Even the HPCSA’s own expert witness conceded, he said that “nobody was, and no-one could have been, hurt by the advice”. That’s even assuming that giving advice on social media “were an ethical infraction”.
HPCSA hearings are ” traditionally non-adversarial”, Ncayiyana said. However, the fierceness with which the HPCSA pursued the case “deviated from this tradition”.
That’s putting it mildly.
Ncayiyana said that the case raised many questions about the Constitutional protections of free speech and academic freedom. Giving medical “advice” in the media is “an ancient practice that predates the epoch of the internet”.
Noakes has “every right to have his say”, Ncayiyana said. It is perfectly appropriate, even necessary that his peers “interrogate his perspectives”. But it is also important that they do not suppress or vilify scientific evidence that “detracts from traditional dogma”.
That’s especially the case, he said, for those with careers and reputations “contingent on that evidence”.
And with that, Ncayiyana hit the raw nerve that has so excited this case. Noakes and LCHF threaten careers, reputations, funding and livelihoods.
Upton Sinclair put it in a nutshell when he said: “It’s difficult to get a man to understand something when his salary depends on his not understanding it.”
Just as disturbing – and ethically suspect – is the deafening silence from all the universities involved. Wits, UCT and Stellenbosch have breathed nary a word on the conduct and industry links of their academics in this case.
Among them is UCT nutrition Prof Marjanne Senekal. A colleague of Noakes, she was one of four authors of a letter to the press attacking Noakes in 2014.
She also became a consultant to the HPCSA when its case began falling apart. She has significant industry links.
Neither she nor her university seems to think that there’s anything inappropriate or ethically suspect about doing that to a colleague. Unless of course, you have proof positive that he’s a danger to people’s lives and limbs.
Walk the line
The biggest problem for Dhai is not just that she is director of the Steve Biko Centre for Bioethics at Wits. She is also its founder. Thus, she basks in the full halo of Biko’s name, legacy and ethics.
Given Biko’s reputation for integrity, ethics and torture and death at the hands of MDs, Dhai walks in big ethical shoes.
If she were to serve as a “source of moral authority”, she would always have to walk a straight line. And keep her ethical nose squeaky clean.
In the South African Journal of Bioethics and Law in 2016, Dhai writes: “Professionalism is the foundation of the social contract between practitioners and society.
“In exchange for the privilege of caring for patients and the accompanying status and respect, society expects physicians to practise professionally and empathetically.”
As a physician, she would do well to heed those words and practise what she preaches.