By Marika Sboros
It’s not strictly legally correct to say that the Health Professions Council of South Africa (HPCSA) postponed its first hearing against Prof Tim Noakes on June 4, 2015. Or even that it adjourned the hearing.
It’s more correct to say that it delayed the start of the hearing until November 23, 2015.
“You can’t postpone or adjourn a hearing that hasn’t even started,” Johannesburg advocate Michael van der Nest SC, a member of Noakes’ legal team, has explained.
“The correct term is that the hearing did not begin.”
That can sound like semantics. However, legal experts say that it goes to the heart of due legal process.
That’s an important distinction because following due process needs to happen, he said. The public needs to see that fairness is present at the start of any hearing.
That makes sense even though the HPCSA is a statutory body and its hearings are not courts of law. However, the hearing might just as well be a court of law, given all the flexing of legal muscle on both sides.
The hearing did not happen, as Van der Nest explained, because the HPCSA did not constitute its Professional Conduct Committee correctly according to its own rules. The committee will hear the allegation of unprofessional conduct against Noakes.
According to the legal provisions of the Health Professions Act, the HPCSA has to have at least two members from “relevant professions” on the committee. Both members must also be medical doctors, as Noakes is also a medical doctor. The HPCSA had only one MD on the committee. One would have thought it could have easily got the maths right on that one.
Fundamental legal issue
Cape Town instructing attorney Adam Pike, of Pike Law, who heads the legal team, said that there was no legal rocket science behind why the hearing didn’t happen.
“The fundamental point is that only peers and members of the public can judge medical practitioners on a charge of unprofessional conduct. The public needs to see that members of the committee that HPCSA sets up are independent and objective. If not, then as his legal team, we have to do something about that.
“In this case, the HPCSA did not constitute the committee in compliance with its own rules.”
Click here to read: Noakes makes a real meal of critics
An equally contentious issue concerned the impartiality – or lack thereof – of committee members. “We spent the whole day arguing about this and our view prevailed,” Pike says.
The HPCSA notified Noakes’ legal team a little over a week before the hearing that North-West University dietetics professor Edelweiss Wentzel-Viljoen would be on the committee. Wentzel-Viljoen is chair of the HPCSA’s Professional Board for Dietetics and Nutrition.
Reluctance to recuse
Pike had written to Wentzel-Viljoen requesting that she recuse herself because she had issued public statements on behalf of the HPCSA. In those statements, she had warned the public against low-carb, high-fat (LCHF) diets.
Thus, she was clearly not impartial or objective in this case.
Wentzel-Viljoen and the HPCSA initially opposed her recusal but a few days later, she recused herself.
The last-minute replacement was Stellenbosch University dietitian Prof Renee Blaauw. Therefore, Noakes’ legal team had just a few days before the hearing to respond. The team only heard at the hearing that Blaauw was also a member of the Association of Dietetics of South Africa (ADSA).
ADSA president Claire Julsing Strydom is the complainant in this case. She had reported Noakes to the HPCSA in her personal capacity in February 2014.
However, by the time the HPCSA formulated the charge, ADSA had become the “pro-forma complainant”. As Noakes’ legal team pointed out HPCSA was not allowed to make unilateral changes to the charge without consultation. The HPCSA denied any wrongdoing or irregularities.
Batting for dietitians
Of course, the HPCSA should have known that Noakes’ legal team would vigorously object to Blaauw. And that Noakes would object to someone judging the case against him who is part of the same organisation (ADSA) involved case against him.
Yet HPCSA advocate Meshak Mapholisa insisted throughout that a dietitian should be on the committee. His reasoning was that the case against Noakes was all about dietary advice (“unconventional” in this case). Therefore, a dietitian should be on the committee and Blaauw should be it.
Mapholisa also said that there was no need to worry about any bias from Blaauw because she had promised to be impartial. That can appear extraordinarily naive.
The problem for Mapholisa was legal and ethical duty that the HPCSA has to conduct hearings “without fear or favour”. And Blaauw as a dietitian and ADSA member would have had a hard time persuading reasonable people that she would be free of bias.
Mapholisa also appeared to have accepted Strydom’s contention that dietitians, not doctors, should give dietary advice.
Peers as judges
That’s controversial and not a legal given. Noakes and other MDs firmly believe that doctors should know what their patients are eating and drinking and give advice on nutrition. As the ancient Chinese proverb goes: “He that takes medicine and neglects to diet himself wastes the skill of the physician.”
Mapholisa’s insistence on Blaauw set off another flurry of legal argument.
Van der Nest pointed out again that dietitians did not meet the HPCSA’s own rule of members from “relevant professions” because they were not his peers. They were also not registered with the HPCSA’s medical and dental board, as was Noakes.
Mapholisa could not unilaterally dictate the composition of the committee. He was legally obliged to abide by the constituted requirements, Van der Nest said.
After an adjournment, Adams ruled that the HPCSA had indeed not constituted the committee but that Blaauw could still be on it.
Van der Nest was having none of that. He told Adams that an improperly constituted committee could not make any ruling precisely because it was not properly constituted.
Thereafter, the committee agreed that the hearing could not proceed and delayed it until November 2015.
Whether the HPCSA will properly constitute the committee next time around is anyone’s guess. So too is it anyone’s guess whether the HPCSA will follow the rules and exclude Blaauw.
A ‘bitter-sweet day’
Pike said that the delay had “deeply disappointed” Noakes and his legal team. “It was a strange, bitter-sweet day,” he said.
The legal team were fully prepared if the Committee went ahead despite the objections. These delays happen all the time in contentious proceedings, Pike said. However, the team was happy that their view prevailed. “Now we look forward to fighting the good fight in November.”
I asked Mapholisa for comment, but he declined. He said I had to go through the HPCSA communication channels. I tried that, without success. The same happened when I asked Strydom and ADSA for comment. All cited the sub judice rule, claiming that they could not comment until the hearing has concluded. I pointed out, to no avail, that the sub judice ruling does not apply as the HPCSA is not a court of law.