PREMIUM FREE TRIAL

Tim Noakes and legal dream team helping him survive ‘trial by ambush’

Curiouser and curiouser. Just when you think the Health Professions Council of SA hearing against a world-renowned scientist, Cape Town University emeritus professor Tim Noakes, can’t get any more peculiar, it exceeds all expectations. Here are my impressions of what went down this time round. It’s another long read, but like all good whodunnits it’s worth it. So make yourself a cuppa and read it at your leisure. 

By Marika Sboros

Tim Noakes
University of Cape Town emeritus professor Tim Noakes. Picture courtesy of the Noakes Foundation

Here’s a shocker for the legal and ethical books: the Health Professions Council of SA (HPCSA) has been procuring secret reports, and then using these as the basis for laying charges against health professionals without giving them a chance to respond to accusations.

This emerged during the HPCSA’s hearing at the instance of the Association for Dietetics in SA (ADSA) against University of Cape Town emeritus professor Tim Noakes, a medical doctor and world-renowned scientist that began in Cape Town on November 23.

The hearing, known as the “Banting for Babies” trial, even somewhat hyperbolically as the “Nutrition Trial of the Century”, ended a day early on November 30, without the defence being able to begin presenting its case. It was adjourned to February 8, 2016.

That will be exactly two years and two days since Johannesburg dietitian Claire Julsing Strydom, then president of ADSA, first started this bizarre legal ball rolling.

Strydom wrote to the HPCSA on February 6, 2014, lodging a complaint against Noakes for two tweets on February 4 in which he told breastfeeding mother Pippa Leenstra that good first-foods to wean her infant were low-carb, high-fat (LCHF), in other words,  meat and veg – advice that ADSA, Strydom and SA’s official dietary guidelines now routinely seem to offer.

But back to the HPCSA’s use of secret reports:

If it were not shocking enough that the HPCSA charges professionals on the basis of secret reports, what is arguably more shocking is that HPCSA legal advisors appear to see nothing wrong with it. That’s if factual evidence given by HPCSA legal officer Nkagisang Madube at the hearing is anything to go by.

Madube testified that this is  “normal procedure” for the council. He  repeatedly referred to reports submitted to HPCSA preliminary hearings as “for your eyes only”, and gave this as the reason Noakes was not allowed to see the report before being charged. He denied that this causes any prejudice. He said Noakes had been given the opportunity to respond in writing to the initial complaint Strydom made.

Michael van der Nest SC
Johannesburg advocate Michael van der Nest SC

Johannesburg advocate Michael van der Nest SC quickly and easily undermined Madube’s evidence.

Van der Nest pointed out to Madube the HPCSA’s own regulation under the Health Professions Act requiring that anyone facing a complaint be given “copies of any further information” in order to respond fully in writing before being charged.

He asked Madube to show where the Health Professions Act or the regulation under it allowed for any “secret reports”. Madube was at a loss.

Van der Nest also pointed out that the fundamental principles of justice upon which South African law and constitutional democracy are based, require that persons in the position of Noakes be given access to all available evidence against them before being charged.

This is to ensure the organisation tasked with deciding whether or not to proceed with a charge foresee any prospects of success. If there are no merits to the complaint, taking the response into account, the organisation saves itself money and resources by not pursuing spurious complaints.

The HPCSA appears unconcerned about saving money when it comes to prosecuting Noakes, despite the finding of the ministerial task team that has been investigating it since March, on its a “dysfunctional system of professional conduct enquiries which has prejudiced practitioners and the public”. Estimates are that the hearing has already cost the council around R1million, with no end in sight.

Read also: HPCSA crisis could hold win for Tim Noakes

Madube became increasingly belligerent, but ended up no match for the steely Van der Nest.

The hearing heard that the secret report used to charge Noakes was made by retired Northwest University nutrition professor Este Vorster. In June 2014, the HPCSA preliminary committee of inquiry, chaired by eminent University of the Witwatersrand ethicist Prof Ames Dhai, called for an expert opinion regarding the complaint and the issues arising from it.

Banting LCHF Noakes
Retired Northwest University nutrition professor Este Vorster

The HPCSA secured the opinion from Vorster. Vorster submitted her report to the reconvened preliminary committee of inquiry held in September 2014, which was used to decide whether or not to charge Noakes.

The reconvened committee considered Vorster’s report, and charged him on a single point of inquiry: unprofessional conduct in providing unconventional advice on breastfeeding babies – without any input from Noakes.

Fortuitously, Vorster’s report did make its way into Noakes’ hands, but only in error in April 2015, ahead of the first hearing by the HPCSA’s professional conduct committee in June 2015.

It was attached to one of a series of emails that one of the functionaries at the HPCSA sent Noakes’ Cape Town lawyer, Adam Pike of Pike Law. Pike has confirmed that.

The initial hearing, set down for two days in early June 2015 didn’t even get off the ground because the HPCSA tried twice and failed on both occasions to load the professional conduct committee with a dietitian, in breach of the Health Professions Act and the regulations, and was postponed till November 23.

This time round the committee was constituted correctly.

The charge of unprofessional conduct against Noakes is peculiar enough on its own. After all, the HPCSA usually reserves it for practitioners who have committed really serious misconduct, fraud, criminal activity and other heinous deeds – like sexually abused patients, grievously injured or maimed them, or in a worst case scenario, killed them.

It also raises questions about the HPCSA’s real motivation in charging Noakes. The point of inquiry represents the “four corners of the charge”, as a legal expert explained it to me. Another fundamental principle of natural justice is that a penal charge should be clear and unambiguous.

The formulation of the charge is like a “perimeter fence” designed to ensure that the prosecution of the complaint is focused. It ensures that the respondent is certain as to the charge he or she must defend. Were it otherwise, say legal experts, the hearing would be entitled to “explore anything that lies on the other side of the fence”. A conduct inquiry would turn into a fishing expedition. That would be prejudicial to the person facing the charge.

Read also: Tim Noakes and the peculiar hearing that didn’t happen

Mapholisa has ignored the fence. At the first abortive hearing in June, the charge of giving unconventional advice was changed to include a time period “during February 2014” and an additional element “on a social network (tweets)”. At the beginning of the November hearing, Mapholisa announced that the time period had been extended to include “January 2014” as well.

Add all that to the secrecy of how Noakes was charged in the first place, and peculiar instances of cloak and dagger behaviour during the hearing, it’s not surprising it has fed speculation of an organised campaign to discredit Noakes.

That campaign is looking more and more likely, though quite who might be behind it is not yet clear.

Mapholisa
HPCSA advocate Meshak Mapholisa at the hearing with Johannesburg dietitian Claire Strydom

There have been suggestions that Strydom and ADSA are proxies for vested interests, among them food and pharmaceutical companies; that medical specialists and dietitians have a vendetta against Noakes because they don’t want him giving advice that conflicts with medical and dietetic dogma, and especially official dietary guidelines; and that doctors and dietitians truly believe that low-carb, high-fat (LCHF, aka Banting or ketogenic) eating is dangerous, despite the growing body of solid science to show that it isn’t.

What the hearing has made increasingly clear is that Noakes and the science behind LCHF are threatening careers, reputations, livelihoods, businesses and profit margins.

In her factual evidence to the hearing, Strydom strenuously denied any collusion between ADSA, the HPCSA, other dietitians, food companies, or anyone else to muzzle Noakes.

Read also: Why a Swiss investment bank backs Banting – and Tim Noakes!

She said her only motivation was her “horror” at the advice he gave to the breastfeeding mother. It was “not evidence-based”, she said, and could have harmed the infant had the mother followed it.

“Not evidence-based” became an oft-repeated refrain in this hearing, not just by Strydom but all the expert witnesses Mapholisa called. Strangely, none made much reference to the growing and significant body of scientific evidence in support of efficacy and safety of LCHF. It was as if they were all oblivious to the implications of its existence.

In cross examination of Strydom, Van der Nest quickly poked holes in her evidence and she became flustered. At one stage, 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 got Strydom to concede that she had “probably over-reacted” in her response to Noakes’ tweet. Importantly, Strydom conceded that Noakes was not in a doctor-patient relationship with Leenstra as she had alleged.

He proposed that if Leenstra had been Noakes’ patient then Strydom would have been guilty of the same charge she had made against Noakes: she and another ADSA dietitian, Marlene Ellmer, had followed Noakes’ tweet with one of their own, giving advice to Leenstra.

Strydom had gone even further, and tweeted her phone and email address, telling Leenstra to contact her for better advice. Had Leenstra been a patient, both Strydom and Ellmer would have had to take a history of the mother and the infant and do the necessary research before giving her “advice”.

In addition, said Van der Nest, this would have meant that both Strydom and Ellmer had taken over Leenstra as a patient. They would then be open to a charge of “supercession”, the legal terminology for taking over another professional’s patient without permission, a breach of the HPCSA rules of conduct, and should have been charged.

Strydom was therefore forced to concede that Leenstra was nobody’s patient.

Van der Nest also got Strydom to concede that the content of her tweet to Noakes, in which she said how “horrified” she was, and that she would be reporting him, written it in capital letters with exclamation marks, constituted an attack on his professional reputation.

That opened her up to another charge she had made against Noakes – that he had brought the reputation of dietitians into disrepute. Her public expression of “horror” breached the HPCSA’s rule of conduct which states that “no professional should cast reflections on the professional reputation or skill of any person registered under the Act or any other health Act”, and she should have been charged.

Van der Nest also pointed out that Noakes was actively engaged with Strydom and ADSA on a blog on the association’s website on the topic when she reported him to the HPCSA. He put it to Strydom that she did so because she couldn’t win the debate with him on a public platform and wanted to shut him up.

She denied that.

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

After Strydom, Mapholisa called three expert witnesses: Vorster, another Northwest University nutrition professor Salome Kruger, who is also a pharmacist, and paediatric specialist Prof Muhammed Ali Dhansay, now a Medical Research Council unit head.

All spoke highly about South Africa’s current official dietary guidelines  – although Vorster,  one of the authors of the guidelines, conceded that they were vague. All ended up giving similar evidence, but also evidence beyond their areas of expertise, and beyond the scope of the charge. All ventured “beyond the fence”.

For example: all demonstrated little or no real understanding of LCHF. All brought up the subject of ketosis, when it isn’t mentioned in the charge. (Ketosis is a normal and benign metabolic state in which the body uses ketones from fat for fuel instead of glucose from carbohydrates.) All three appeared often to conflate ketosis with ketoacidosis, a condition seen mostly only in uncontrolled type 1 diabetes, and which can be lethal.

UK editionAll three contended that Noakes was unprofessional in telling the breastfeeding mother to stop breastfeeding in contravention of South African and internationally recommended paediatric guidelines that promote exclusive breastfeeding as optimal for infants for the first six months. This is despite the fact that Noakes is on record, including in his bestselling books, The Real Meal Revolution and Raising Superheroes, promoting breast milk and breastfeeding as best for babies and for up to two years.

All three seemed to have a problem with doctors writing popular books. Kruger made sarcastic comments about people wanting to “challenge beliefs” by writing books, and book titles with words like “revolution”. Apart from The Real Meal Revolution, Noakes is author of Challenging Beliefs: Memoirs of a Career.

Not surprisingly, all three of the HPCSA expert witnesses proved easy meat for another member of Noakes’ legal team: dogged defence advocate Ravin “Rocky” Ramdass or the Pietermaritzburg Bar, a medical doctor, with 23 years’ experience as a specialist family physician.

Among many concessions Ramdass extracted from Vorster were that she has never practiced as a dietitian or seen patients (her undergraduate degree was a BSc in home economics), isn’t qualified to give evidence on ethics or the doctor patient relationship, isn’t active on Twitter, and clearly doesn’t know much, if anything at all, about the popular social network’s environment, dynamics and etiquette.

Kruger, who is also a pharmacist, presented herself as having expertise in medical ethics despite little formal training. In her evidence she criticised Noakes for lacking expertise in nutrition, and for telling Leenstra to stop breastfeeding.

She went on at length about “wind” in infants, and LCHF causing or exacerbating colic and cramp, despite this not being in the charge.

Under Rocky’s cross-examination, Kruger eventually conceded that Noakes does have expertise in nutrition. Given Noakes’ A1 National Research Foundation scientist rating that includes his work in nutrition, she also conceded that it is not possible to be an expert in sports nutrition without a solid understanding of nutrition in general.

Salome Kruger
Northwest University Prof Salome Kruger

Ramdass effectively undermined the probity of Kruger’s evidence on the ethics of Noakes’ conduct.  The coup de grace came when Kruger, pressed by Ramdass, was unable to name all four pillars of medical ethics: autonomy, beneficence, non-maleficence and distributive justice.

Kruger also admitted she had written her report in a rush in the evenings, as she was busy with a research project.

Dhansay’s evidence appeared to echo much of what was contained in Vorster’s secret report to the preliminary hearing, including an emphasis on ketosis, despite the statement in his expert summary that he had not seen the secret report.

Ramdass elicited from all three witnesses that none could match Noakes’ scientific rating as one of the few A1 scientists in the world for expertise in both sports science and nutrition. Kruger has a B1 rating, Vorster a C1, and Dhansay no rating at all.

Although Dhansay’s written summary of his expert evidence contained references to ethics, Mapholisa did not lead this in evidence.The only inference I could draw from that was that Mapholisa realised before Dhansay gave evidence that all his expert witnesses were weak on ethics, and he would have to do something to plug the gap.

That is most likely the reason for the unusual application Mapholisa sprang on the hearing at the close of the fifth day of the hearing when he hinted at possibly calling another witness.

(I say “most likely” because Mapholisa has steadfastly refused to answer any questions I  put to him since before the June hearing, citing the “sub judice” rule. Ditto for Strydom, despite the fact that HPCSA hearings are not courts of law, and thus neither is subject to the sub judice rule on all aspects of the hearing. When I tried to talk to Mapholisa when the November hearing in Cape Town began, he said he would be “disciplined” by the HPCSA if he spoke to me.)

Mapholisa’s application for the surprise new expert witness precipitated one of two bizarre showdowns at the hearing. In the first one he initially refused to disclose the name of the witness, whether the witness would be factual or expert and on what topic. He only did so reluctantly after repeated requests and finally an order to do so by committee chair Pretoria advocate Joan Adams.

An exasperated Adams told Mapholisa that the HPCSA hearing was not like Ally McBeal, a reference to the American TV legal series in which surprise witnesses turn up at the last minute to save the day. She reminded him that South African law was based on openness, transparency and democratic principles, and the interests of fairness and justice required that he divulge the name of the witness to Noakes’ defence team, and any others he intended calling.

The second tussle was even stranger and occurred on the final day of the hearing over a file belonging to the HPCSA, which Madube referred to and which became part of the evidence.

As the file had not been “discovered” to the defence, the legal term for making relevant information available to the other side, Van der Nest requested access. Mapholisa agreed. The file was large, and when Van der Nest said the defence would have to make copies as there would be no time to go through all the pages before the hearing was adjourned till next year, both Mapholisa and Madube became agitated and attempted to prevent the defence from doing so.

Joan Adams
Pretoria advocate Joan Adams

Adams  once again to intervened, saying that the  interests of fairness and transparency required that Van der Nest and his team make copies. She told Mapholisa that council’s team could watch the defence make copies of the file, which they did.

There were other indications that Mapholisa was feeling  under pressure. On the last day, he personally raised an objection with Adams that she and another committee member, Dr Janet Giddy, had greeted Noakes’ wife, Marilyn, during a tea break. Mapholisa asked Adams to keep his objection from the hearing.

Presumably the implication was that this indicated bias in favour of Noakes on her and Giddy’s part, building up to a possible request for their recusal.

Adams said transparency and openness required that she disclose Mapholisa’s objection to the hearing, and she emphasised the committee members’ legal obligation to be independent, and said simply greeting anyone openly and in public was certainly not any indication of bias. She said she would have greeted Mapholisa’s wife, had she been present at the hearing.

Mapholisa’s surprise witness turned out to be very surprising indeed, though perhaps not as he may have intended or hoped: Stellenbosch professor Willie Pienaar, a psychiatrist with a master’s degree and special interest in applied bioethics, who is known to give lectures and read widely on the topic.

That raises yet another uncomfortable question for Mapoholisa: with so many professors of bioethics in South Africa available, why choose a lightweight in ethics such as Pienaar? I would have thought it might at least be someone from the  Steve Biko Centre for Bioethics at Wits, of which Dhai is the director.

An increasingly exasperated Van der Nest objected vigorously to Mapholisa’s application, describing it as “trial by ambush”. He questioned the need for another witness on ethics, since all three of the HPCSA’s expert witnesses had presented themselves as having the expertise. He also pointed out the HPCSA’s own regulation requiring that the defence team be given at last seven days notice of a new witness to allow for expert advice to be able to cross-examine effectively.

Adams said the committee had unanimously agreed that in this case the prejudice to Mapholisa’s case required agreeing to the application. That led to the adjournment till next year to give the defence team a chance to prepare properly to cross examine Pienaar.

On the last day of the hearing, Van der Nest spoke eloquently and at length on a long list of delays and procedural irregularities during the hearing that had seriously prejudiced Noakes. He said the hearing  had taken its toll on Noakes not just financially, but emotionally, and being charged by his own professional body in this way had done significant damage to his reputation.

That prejudice could not be cured with a cost order as regulations did not allow adverse cost orders against the HPCSA.

Noakes has spoken in interviews of the significant  burden of the trial including financial cost, despite all the members of his legal dream team acting pro bono from the start.

“They have saved me at least around R3million,” Noakes told me. “I can never repay them not just for that, but for all the moral and emotional support they have given me.”

The hearing ended up flagging yet another example of the damning findings of the ministerial task team that has been investigating the HPCSA since March 2015:  that hearings have become increasingly adversarial, instead of the fact-finding inquiries they are meant to be.

The hearing against Noakes couldn’t have been adversarial from the start if it had been scripted that way. It  raises many red flags over  why the HPCSA appears so determined to prosecute Noakes and who may behind it.

After all, the council doesn’t appear to show the same dedication and determination on other important issues.

Just two examples: the HPCSA Annual Report 2011/12  lists among issues flagged for attention of the HPCSA’s Dietetics and Nutrition Board, the “employment of dietitians by private institutions such as Nestle, Kellogg’s etc”. On Page 55, it refers to a resolution of the issue relating to the “improvement and quality of clinical and professional education and professionalism of dietitians”.

The signs couldn’t be more auspicious that the hearing in February 2016 will be even more revelatory than this one has been.

For a deeper understanding of the world of money and greater financial control, upgrade to BizNews Premium.