By Marika Sboros
The Health Professions Council of South Africa (HPCSA) is back on the warpath against Prof Tim Noakes. It has also thrown down legal gauntlets to Pretoria advocate Joan Adams.
Adams chaired the HPCSA’s Professional Conduct Committee that heard the charge of unprofessional conduct. She delivered the comprehensive, 60-page, four-to-one not-guilty verdict in Cape Town on April 21, 2017. The HPCSA announced its decision to appeal in early May but only gave grounds in August.
The HPCSA effectively claims that the committee, including three medical doctors, didn’t know what they were doing. They “fundamentally misconstrued their role in evaluating the evidence”. And they “erred and misdirected themselves on the law and the facts”.
The HPCSA believes that there’s a “reasonable chance” its Appeal Committee will overturn the entire verdict. Its legal team doesn’t just want a guilty ruling. It wants a whole new “rehearing”.
Noakes calls that “malicious”. He says that the HPCSA faces “five rather large roadblocks in its case against him”. Those include compelling new evidence of collusion between a dietitian on the HPCSA and the dietitians who reported him.
It’s now a fight between lawyers as Noakes will not have to appear and the case will only be heard next year.
The HPCSA tell me they haven’t yet decided who’s on the appeal committee. However, it will consist of four members who must reach a majority verdict. In case of deadlock, the chair has the casting vote. (Correction: an HPCSA source says that the rules do not allow the chair to have a casting vote. And therefore, if there is deadlock – two for, two against – the committee must acquit.)
Usually, the appeals process does not involve any new evidence. However, Noakes’s legal team uncovered dramatic new evidence in an access-to-information request to the Association for Dietetics in SA (ADSA).
Adam Pike, of Pike Law, made the June 2017 request under the Protection of Access to Information Act (PAIA).
It puts a new light on the drivers and motivation behind the hearing.
ADSA’s new president, Nicole Lubasinski, inititally refused the PAIA request. She claimed that ADSA, as a “corporate body without profit motive”, did not have to agree. She complied after Pike explained the legal implications of PAIA.
The PAIA request yielded an incriminating email chain. It supports the defence contention that the HPCSA was biased against Noakes from the outset. It also suggests HPCSA collusion with ADSA.
Emails appear to show highly irregular contact between HPCSA’s Dietetics Prof Edelweiss Wentzel-Viljoen, and ADSA dietitians. These include Claire Julsing Strydom, who first reported Noakes, and her successor as ADSA president Maryke Gallagher.
Click here to read: The REAL beef dietitians have with him
In emails, Strydom and Gallagher make emotional appeals for help from Wentzel-Viljoen. They also ask the HPCSA to speed up action against Noakes. In one email, Wentzel-Viljoen assures them that the HPCSA has “a plan” for Noakes.
She apologises for being unable to reveal the plan at that stage.
The HPCSA hasn’t said yet if it will allow the new evidence. However, it will be on public record in The Lore of Nutrition, which Noakes and I have co-authored. Penguin Random House is publishing it in November 2017.
Controversially, the HPCSA tried and failed to get Wentzel-Viljoen on the Professional Conduct Committee.
They have taken an extraordinary shot-gun approach in appeal grounds. They give seven grounds, some in subsections, 28 in all. Click here to read the HPCSA’s grounds.
The case against him
The grounds are based on external advocate Ajay Bhoopchand’s closing heads of argument on April 4, 2017. These covered all four corners of the charge of unprofessional conduct against Noakes. These are that he allegedly: had a doctor-patient relationship with breastfeeding mother Pippa Leenstra; gave medical advice on a social network; the advice was “unconventional” and “not evidence-based”; and he contravened his profession’s “norms and standards”.
Bhoopchand took more than 140,000 words to make the HPCSA’s case. His arguments ended up rambling, contradictory and circuitous. That contrasted sharply with closing arguments by defence advocates Michael Van der Nest SC and Dr Ravin “Rocky” Ramdass. They took just over 40,000 words to make their case. Their arguments were tightly focused and eloquent.
Bhoopchand claimed that Noakes had a doctor-patient relationship with Leenstra. He ignored the HPCSA own witnesses’ evidence, including Strydom, that there was no such relationship. Bhoopchand also oddly claimed that the onus was on the defence to prove that the doctor-patient relationship was crucial to the charge.
The case for him
In closing argument, Van der Nest swiftly dispatched that notion. Raising a defence does not reverse onus, Van der Nest said. It also does does not excuse the prosecution from having to prove elements that support its case.
The doctor-patient relationship thesis was crucial to the HPCSA’s case, he said. The HPCSA said so in details of the charge. The relationship was always “nonsense and guaranteed to fail”, Van der Nest said.
Ramdass called elements of the HPCSA’s case “unfathomable” and “inexplicable”.
The HPCSA’s grounds for appeal include another astonishing argument: that Adams and her committee made “assumptions … from (Leenstra’s) perspective” to find Noakes not guilty.
They had no choice because of the HPCSA’s obvious failure to call or subpoena Leenstra as a witness. Bhoopchand ignored that. Noakes and his legal team didn’t. They extensively addressed the implications. Noakes memorably referred to Leenstra’s absence as one of many instances of “dogs that did not bark“.
Dogs that don’t bark
That was a reference to Silver Blaze, a classic Sherlock Holmes tale by Sir Arthur Conan Doyle. The dogs that didn’t bark showed that “absence is just as important and just as telling as presence”. And that what didn’t happen was just as critical as what did.
Click here to read: ADSA backlash for ‘record 17 lies’ about Noakes
The HPCSA’s appeal grounds regurgitate claims against Noakes that aren’t in the charge. One is that he told Leenstra to stop breastfeeding. Nowhere in his tweet did Noakes tell Leenstra to stop breastfeeding. The charge also does not include not promoting breastfeeding.
Bhoopchand also variously claimed that the case was all about infant nutrition and advice on social media. However, the HPCSA built their whole case around evidence on adult (and flawed) nutrition. And most of the HPCSA experts were inexpert on Twitter.
And appeal grounds claimed that the committee made findings “beyond the jurisdictional issues” that the evidence “does not support”. Yet Noakes and his experts, Dr Zoë Harcombe, Nina Teicholz and Dr Caryn Zinn, presented extensive evidence.
Noakes alone took close to 40 hours, to present evidence in 6000 pages, over 1100 slides and 350 references.
HPCSA witnesses also conceded that LCHF aligns closely with South Africa’s paediatric nutrition guidelines.
Thus, the HPCSA’s appeal once again feeds theories of a concerted campaign to silence Noakes. It also feeds what Van der Nest described as the HPCSA’s “win-at-all-costs” agenda.
Van der Nest called the hearing “impressible censorship”. He also called it a “prosecution and persecution” of a distinguished scientist for his opinions on diet.
The appeal once again raises issues of conflicts of interest. The defence showed that efforts to prevent chronic disease diametrically oppose commercial interests of food industries. Chief among those are the sugar, processed foods and soft drinks industries. Coca-Cola and its proxy, the International Life Sciences Institute (ILSI) feature largely in the latter, as US investigative journalist Russ Greene’s extensive research revealed.
Noakes and his lawyers also highlighted the HPCSA witnesses’ many conflicts of interest. Strydom, Prof Hester “Este” Vorster, Prof Herculina Salome Kruger and paediatrician Dr Ali Dhansay all have industry ties. Strydom and Gallagher are industry consultants.
In closing argument, Van der Nest said that Strydom launched the hearing against Noakes on “a whim”. She was annoyed because the public appeared to be listening more to him than to her. She was nothing but a “disgruntled dietitian”.
A dietitian’s ‘miracle’
“Miraculously”, Strydom got the HPCSA to do her bidding, Van der Nest said.
The PAIA email chain suggests something much more pedestrian than miracle. Wentzel-Viljoen’s enthusiastic support from within the HPCSA facilitated the hearing.
In his talks, Noakes now explains to audiences that the HPCSA case against him has no merit. Firstly, Noakes says that he very clearly answered a “we” question from Leenstra. A recent publication by a prominent South African medical ethicist in the South African Medical Journal supports that.
The article effectively states that doctors have a responsibility to answer “we” questions addressed to them in a public forum. They should be wary about answering “I” questions that may seek specific medical advice.
The HPCSA did not contest all the evidence proving that Leenstra posed a “we” question.
Secondly, Noakes says that there could not have been a doctor-patient relationship with Leenstra. “If the HPCSA honestly believes that doctors may not answer a ‘we’ question in any public forum, it is basically attempting to control everything medical professionals can say in public.”
Implications for doctors
Therefore, implications for doctors are serious. In future, says Noakes, doctors, or indeed anyone registered with the HPCSA would not dare risk answering even general questions. These include: Doctor, should I stretch my muscles before I exercise? Or: Doctor, should I sleep six hours a night?
By the current HPCSA logic and by the act of answering the question, medical professionals enter a doctor-patient relationship, Noakes says. The professionals will also act unprofessionally if they don’t first examine the “patient”.
The driver of this logic is ” the extreme paternalism” that HPCSA’s witnesses expressed throughout the hearing, Noakes says.
Click here to read: Noakes really is a public danger – cardiologists
“They believe that members of the general public are too stupid to make up their own minds about what’s best for them.
“The HPCSA have decided that they must protect the ignorant public. They must ensure that people receive only information they have sanitised and consider fit for consumption.
“Such control raises worrying questions,” Noakes says.
The HPCSA know there was no doctor-patient relationship because they failed to charge Strydom and dietitian Marlene Ellmer, he says. Both Strydom and Ellmer tweeted to Leenstra. Both also, according to the HPCSA definition, gave medical “advice” on social media. They also both actively engaged Leenstra, telling her what advice to follow and not to follow.
Hoist on its own petard?
Worse, by the HPCSA’s own logic, both were also guilty of “supersession”. In other words, they were stealing Noakes’s “patient” without his consent. HPCSA’s own code of conduct considers supersession “a very serious misdemeanour”.
“Until they are charged as was I, the HPCSA disproves its own case against me,” Noakes says.
Thirdly, the nutritional information Noakes tweeted aligns perfectly with the South African infant feeding guidelines. Ironically, both ADSA and Vorster, the chief prosecution witness, have published articles proving that.
As a result, that raises many questions. One of them, says Noakes is: Don’t these “experts” know exactly what are their own guidelines? And why, if they really understand what those guidelines say, would they wish to put him through 25 days in court, costing perhaps a total of R10 million (most of which doctors have paid through their HPCSA membership)? And at least another five days scheduled for the Appeal the HPCSA will hold in 2018?
There’s also the issue of harm that is crucial to a charge of unprofessional conduct. Leenstra made it clear in media interviews that she did not follow the information Noakes gave her. She also made clear that there was no harm to her infant. And crucially, Leenstra did to report him to the HPCSA.
Who is really the victim?
Rather, a dietitian in Johannesburg’s affluent northern suburbs, with clear conflicts of interests, complained. Normally, the HPCSA insist that its boards treat with extreme caution complaints that those with conflicts of interest lay. Not so, however, in the case against Noakes.
Click here to read: Can you trust dietitians who are in bed with Big Food?
Another big roadblock for the HPCSA is “irrefutable evidence” of the real reason that Strydom laid her complaint, Noakes says. It wasn’t because Noakes’s tweeted information posed any danger to Leenstra’s baby, he says. It was the phenomenal success and effects of The Real Meal Revolution on the dietetics profession.
Publishers released the book two months before Strydom lodged her complaint.
“It is clear that the general public was asking questions of ADSA and its dietitians that they were unable or unwilling to answer.”
Instead, Noakes says that Strydom wanted the HPCSA to help her to humiliate Noakes publicly. She believed that dietitians would win back the confidence of the public.
Noakes has an idea of the key event that really irritated ADSA and pushed Strydom and Gallagher over the top into action against him. It was probably not anything he wrote, he says.
Rather, it was an article by Gary Watson entitled Tim Noakes on Bullshit. News24 published it on January 13, 2014, just three weeks before Strydom laid her complaint.
A threat to dietitians
Viewers have read the article almost 100 000 times, Noakes says. It includes many comments unfavourable to ADSA and dietetics professionals. As a consequence, it “must have been very threatening to the profession when News24 published it”, he says.
He also did not write the article denigrating the profession but would “have to bear the consequences”.
Noakes currently awaits “further information of how (the HPCSA hearing) came about”. He also wants to know how the HPCSA charged him on “what we’ve clearly established are false and malicious grounds”
- Foodmed.net has emailed HPCSA, Prof Edelweiss Wentzel-Viljoen and other ADSA members for comment. ADSA president Nicole Lubasinski said she is currently out the country and will reply by October 17, 2017. If she replies, Foodmed.net will add her comments to this feature.
- Marika Sboros and Prof Tim Noakes are co-authors of Lore of Nutrition, Challenging Conventional Dietary guidelines (Penguin Random House) to be released in November 2017.
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