Noakes: legal team fights ‘tricks up sleeves, trial by ambush’

By Marika Sboros

The Health Professions Council of SA (HPCSA) has freely admitted to procuring secret reports to charge health professionals. In other words, it doesn’t give the accused a chance to respond to all evidence before being tried.

That’s an extraordinary admission, one for the legal and ethical books. The HPCSA did just that in its case against University of Cape Town emeritus professor Tim Noakes.

This emerged during the November opening session of the HPCSA’s ongoing hearing against him. Like all good whodunnits, the case has had twists, turns and tricks up sleeves. Noakes’ legal team has called it ‘trial by ambush’.

Not surprisingly, the HPCSA now faces gaping holes in its case.

Tweet that started it all

The hearing ended a day early on November 30 and resumes on February 8, 2016. That is two years and two days since Johannesburg dietitian Claire Julsing Strydom reported Noakes for a single tweet in response to a question from a stranger, Pippa Leenstra. He tweeted that good first foods for infants are low-carb, high-fat (LCHF). In other words, meat, fish, chicken, eggs, dairy and vegetables.

Ironically, Strydom, ADSA and SA’s official dietary guidelines now give the same recommendation as Noakes’ tweeted.

Strydom tweeted that she was “horrified” at his “advice”. She was president of the Association for Dietetics (ADSA) at the time but complained in her personal capacity.

Secret reports

To some, the HPCSA’s use of secret reports to charge professionals can seem shocking. Yet its legal advisors see nothing wrong. HPCSA legal officer Nkagisang Madube testified that it was “normal procedure” and denied prejudice to anyone.

Johannesburg advocate Michael van der Nest SC said that the use of secret reports contravened the Health Professions Act and the HPCSA’s rules. Van der Nest asked Madube to provide the Health Professions Act section or regulation that allowed for “secret reports”. Madube could not do so. He became belligerent but was no match for the steely Van der Nest.

The HPCSA was legally obliged to give “copies of any further information in its possession” to respondents before charging them, Van der Nest said. That would allow a full, written response.

He referred to a fundamental principle of justice on which South African law and its constitutional democracy are based. It states that all accused persons have the right to access all available evidence before being charged. That allows them to make full, written responses in their defence.

When a response showed no merit to a complaint, the HPCSA would save money and resources by not pursuing the case, he said.

More fishing

The hearing has already cost the HPCSA around R1 million. Interestingly, a government ministerial task team investigating the HPCSA since March 2015 showed its system of professional conduct enquiries to be “dysfunctional”. It was also “prejudicial to practitioners and the public”.

The hearing heard that the HPCSA constituted a Preliminary Committee of Inquiry to look into Strydom’s complaint in June 2014. The Chair was University of the Witwatersrand ethicist Prof Amaboo “Ames” Dhai.

As there was no evidence of merit to Strydom’s complaint, Dhai could have (and should have, say his lawyers) instructed the HPCSA to ignore it and hung up her hat as a committee member. Instead, as Noakes’ legal team showed, she went beyond her remit on a “fishing expedition”. She adjourned the committee till September 2014, commissioned a report from retired Northwest University professor Hester “Este” Vorster and kept it secret from Noakes.

The hearing heard that the report only landed in Noakes’ legal team’s lap in error in April 2015. It was attached to a series of emails that an HPCSA staffer sent to instructing lawyer Adam Pike, of Pike Law.

Questions around motivation

Armed with Vorster’s report, Dhai and her committee formulated the charge on a single point of inquiry: unprofessional conduct in providing unconventional advice on breastfeeding babies.

Click here to  read:  The real beef dietitians have with Noakes 

That has raised questions of the HPCSA’s motivation in prosecuting Noakes. It reserves the charge for practitioners who have committed serious misconduct, for example, sexual misconduct, theft, grievous harm or death of patients.

As a legal expert explained it to me, the HPCSA was legally obliged to come up with a single point of inquiry representing “four corners of the charge”.

Going beyond ‘the fence’

Formulation of the charge is like a “perimeter fence”, the expert said. It ensures that the prosecution focuses on the complaint and allows the respondent to know exactly what the charge is. Were it otherwise, the HPCSA could “explore anything it likes that lies on the other side of the fence”.  A conduct inquiry could become “a fishing expedition” that severely prejudices the accused person.

Another fundamental principle is that the penal charge should be “clear and unambiguous”. In the case against Noakes, the HPCSA ignored the fence and created a charge that was anything but clear and unambiguous.

His lawyers highlighted evidence that the HPCSA amended the charge in breach of its own rules. At the abortive June 2015 hearing, for example, its lawyers amended the charge to include a time period “during February 2014” and added “on a social network (tweets)”. At the start of the November 2015 hearing, Mapholisa announced a further extension of the time period to “January 2014”.

That has fed speculation of a concerted campaign to discredit Noakes, although quite who is behind it is not yet clear.

‘No collusion’

There are suggestions that Strydom and ADSA are proxies for vested interests in food and pharmaceutical companies and the medical profession. Certainly, many doctors and dietitians don’t want him giving advice that conflicts with theirs.

Click here to read: Can you trust dietitians who sleep with Big Food? 

In her evidence,  Strydom denied collusion with the HPCSA to muzzle Noakes. His legal team believes that email evidence shows otherwise.

Strydom has also claimed that her only motivation in reporting him was his tweet that was not “evidence-based”.  In her evidence, she claimed that Leenstra was breastfeeding and that her infant could have suffered harm if she had followed Noakes’ tweet. YetLeenstra tweeted nothing to suggest that she was breastfeeding or even had an infant.

Holes in evidence

Under cross-examination, Strydom became flustered after Van der Nest poked holes in her evidence. Pretoria advocate Joan Adams, chair of the HPCSA’s Professional Conduct Committee, adjourned the hearing briefly to give Strydom time to compose herself.

Van der Nest asked Strydom if she would welcome being prosecuted for her opinions. She answered no. He responded: “So, only Professor Noakes should be charged for his opinions?”

He got Strydom to concede that she had “probably over-reacted” in her tweet to Noakes and that it constituted an attack on his professional reputation. That breached the HPCSA’s conduct rule that “no professional should cast reflections on the professional reputation or skill of any person registered under the Act ..”.

Thus, The HPCSA should have charged her on that point, Van der Nest said.

Disappearing relationships

Crucially, Strydom conceded that Noakes was not in a doctor-patient relationship with Leenstra. She did so only after Van der Nest explained the implications. In that case, Leenstra was also Strydom’s patient and another ADSA dietitian, Marlene Ellmer’s patient.  Strydom had also tweeted her mobile and email details, telling Leenstra to contact her for “better advice”.

And both Strydom and Ellmer were guilty of “supersession”. That’s the legal term for one health professional taking over another’s patient without permission. That breached the HPCSA rules of conduct, Van der Nest said. Thus, the HPCSA should have charged them both.

And with that, the bedrock of the HPCSA’s case against Noakes began to collapse.

After Strydom, the HPCSA called three expert witnesses. The first was former Northwest University nutrition professor Hester ‘Este’ Vorster. Northwest University nutrition professor and pharmacist Dr Salome Kruger and paediatric specialist Prof Muhammed Ali Dhansay followed.

All appeared unaware of evidence showing that LCHF is safe for all ages. All also supported South Africa’s current official dietary guidelines as “evidence-based”.  Vorster conceded that the guidelines, which she wrote, were “vague” but claimed that this was “intentional”.

Beyond the ‘fence’

All also conflated LCHF with ketosis and ketosis with ketoacidosis. Ketosis is a benign metabolic state in which the body uses ketones from fat for fuel instead of glucose from carbohydrates. Ketoacidosis is a dangerous condition that can be fatal. It is seen mostly in uncontrolled type 1 diabetes.

All three went beyond their areas of expertise by going beyond the ring-fenced scope of the charge. All claimed that Noakes was unprofessional for telling the breastfeeding mother to stop breastfeeding.  Noakes is on record promoting breast milk and breastfeeding for babies for their first two years. Van der Nest pointed out yet again that breastfeeding was not in the charge.

‘Easy meat’

All three witnesses proved easy meat for Noakes’ dogged advocate, Dr Ravin “Rocky” Ramdass. Ramdass is a medical doctor with 23 years of experience as a specialist family physician.

Among many concessions he extracted from Vorster was that she had never practised as a dietitian. (Her undergraduate degree is a BSc in home economics.) She also conceded that she was not qualified to give evidence on medical ethics, was not active on Twitter and knew little about it.

Kruger, likewise, did not fare well under cross-examination. She spent much of her evidence on “wind” in infants. She said that LCHF could cause or exacerbate colic and cramp. Again, the problem for the HPCSA was that infant “wind” was not part of the charge.

Ramdass also effectively undermined the probity of Kruger’s evidence on Noakes’ ethical conduct. She could not name all four pillars of medical ethics – autonomy, beneficence, non-maleficence and distributive justice. Kruger admitted that she had written her report in a rush.

Ethics under spotlight

Dhansay fared just as badly. He had referred to medical ethics only in a written summary of his evidence.  HPCSA prosecutor Meshak Mapholisa did not lead this. He isn’t saying but he likely realised that all his witnesses were terminally weak on ethics. And that he would have to do something drastic to strengthen the HPCSA’s case.

That something came at the close of the hearing’s fifth day when he hinted at wanting to call more witnesses. That precipitated two bizarre showdowns beginning with his refusal to say how many witnesses or give names. That elicited an exasperated response from Adams.

She told Mapholisa that the HPCSA hearing was not Ally McBeal – a reference to the US legal TV series in which surprise witnesses turn up at the last minute to save the day. She reminded Mapholisa that South African law was based on openness, transparency and democratic principles. The interests of fairness and justice required that he divulge witnesses’ names to Noakes’ defence team.

Adams instructed him to give the name. Mapholisa reluctantly gave it: Stellenbosch psychiatry professor Willie Pienaar, with a master’s degree, who lectures part-time in applied bioethics.

Tussle over new evidence

That raised the question: with properly qualified professors of bioethics in South Africa, why did the HPCSA choose an ethics lightweight such as Pienaar?

An increasingly exasperated Van der Nest objected. He described Mapholisa’s last-minute application for more witnesses as “trial by ambush”. After all,  the HPCSA had already called three witnesses all of whom had claimed the necessary expertise. All had given evidence and failed to prove the doctor-patient relationship on which the case hinged.

Adams ruled in favour of Mapholisa.

‘Discovery’ of more secrets

The second tussle concerned a file to which Madube had referred in passing in his evidence. The file was not in the defence’s “discovery” –  the legal term for relevant information that the other side was duty-bound to share. Van der Nest immediately requested access and Mapholisa agreed. However, he and Madube tried to block Noakes’ lawyers from making copies of the file.

Adams once again intervened. She ruled that the defence team could make copies and that the HPCSA team could watch them making copies. Which they did – their annoyance clear for all to see.

On the last day of the hearing, Van der Nest spoke eloquently about the HPCSA’s delaying tactics and procedural irregularities. He said that these had seriously prejudiced Noakes.

Adams adjourned the hearing till February 2016.

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