You couldn’t make this up unless you were smoking something: after revelations of ‘trial by ambush’ and secret reports comes the news that professors of bioethics, surgery and psychiatry exercising a statutory function for the Health Professions Council of SA (HPCSA) may have shown dedication beyond the call of duty to ensure that Prof Tim Noakes was charged and that the hearing against him succeeds. The HPCSA went straight into total denial mode, even contradicting a written instruction by its own registrar in an apparent spin on a cat and mouse game of gross irregularities on the part of one of its committees involved in charging Noakes. Here’s what happened on the first day of the hearing that resumed in Cape Town on February 8 and that grows stranger by the day. – Marika Sboros
By Marika Sboros
Curiouser and Curiouser. Just when you think the Health Professions Council of South Africa (HPCSA) hearing against University of Cape Town emeritus professor Tim Noakes couldn’t fall any further down the rabbit hole, it plumbs new depths.
It now appears that a University of the Witwatersrand bioethics professor and UCT medical professors, all members of the HPCSA Preliminary Inquiry Committee investigating the original complaint against Noakes, may have indulged in questionable actions beyond their remit, aimed at ensuring he was charged and that the case against him succeeds.
Johannesburg advocate Michael van der Nest SC presented evidence to this effect to the HPCSA independent Professional Conduct Committee chaired by Pretoria advocate Joan Adams that is hearing the charge against Noakes.
Adams adjourned the hearing till February 9 after Van der Nest requested rulings from the committee based on the conduct of the HPCSA Fourth Preliminary Committee of Inquiry that charged Noakes in the first place, asking that Noakes be given both the reasons for the decision to charge him, and the evidence on which that decision was based.
The committee was chaired by Prof Ames Dhai, director of the University of the Witwatersrand Steve Biko Centre for Bioethics at the Faculty of Health Sciences, and included Prof John Terblanche, UCT emeritus professor of surgery, and Prof Denise White, UCT professor of psychiatry.
Van der Nest told the hearing that Noakes’ lawyer, Adam Pike of Adam Pike Law had written to HPCSA registrar Dr B Mjamba-Mtshoba providing her with documentary evidence of irregular conduct of Dhai and her committee members, and asking her to explain it all. Mjamba-Mtshoba replied saying she had no power to intervene, and Noakes’ defence team should seek a ruling from the committee that Adams is chairing.
Van der Nest took the committee through a brief history of the background to the Preliminary Inquiry Committee, and how Noakes’ legal team uncovered evidence of irregularities, as well as the various requests for the information Noakes’ legal team has made for reasons why the Committee decided to charge Noakes in the first place:
As early as May 4 2015, Pike addressed a formal “discovery” notice to the HPCSA asking for written reasons for the committee’s decision that Noakes should be charged. Van der Nest drew attention to the HPCSA’s formal response saying the reasons for the committee’s decision would be disclosed at a pre-hearing meeting on May 28, 2015. They weren’t, and to date the HPCSA has still not disclosed the reasons, despite formal correspondence with Pike.
Not surprisingly, the HPCSA’s new advocate, Ajay Bhoopchand, denied everything on his client’s behalf. He appeared to see no irony in saying the HPCSA registrar had got it wrong, that Adams that her committee had no powers to make the rulings Van der Nest was requesting. He went on to say the only redress was for Noakes to approach the High Court for a review of Mjamba-Mtshoba’s decision.
Van der Nest was only relatively restrained when he dismissed Bhoopchand’s contentions out of hand. He told the hearing the HPCSA was “playing games” and trampling on Noakes’ rights in the process by sending him from HPCSA pillar to post.
Ironically, Noakes’ legal team got their hands on incriminating email correspondence in a file suggesting irregular conduct by members of the Preliminary Inquiry Committee, thanks to HPCSA’s own witness, legal officer Nkagisang Madube.
Bhoopchand attempted to argue that away, saying the file had fallen into the defence’s hands “inadvertently”, it contained emails of a “private and personal nature”, and Noakes’ legal team had breached POPI (the Protection of Personal Information) Act by revealing the contents.
Van der Nest was having none of it. With barely disguised irritation, he said there was nothing inadvertent about HPCSA advocate Meshak Mapholisa’s willing agreement to hand over the file, and drew attention to the written record. He said there was nothing personal about the content of the emailed correspondence – it was copied to all HPCSA committee members, was clearly in pursuance of the authors’ duties as committee members – and POPI was no cover for “abuse of power” by officials conducting public business.
But just what did Dhai, Terblanche and White (both Noakes’ medical colleagues at UCT) do that has so concerned Noakes’ legal team?
Lots, according to emailed correspondence between Pike and Mjamba-Mtshoba that included incriminating extracts from the contested file. Concerns raised related to:
- The “manner in which the Fourth Preliminary Committee of Inquiry chaired by Dhai discharged its obligations; and
- The issues in dispute which form the subject matter of the hearing.
Unless you’re a lawyer, the legalese might not say very much. Essentially, Van der Nest said the correspondence shows that Dhai continued to involve herself in and interfered with Mapholisa’s preparations for the case. For example, she insisted that Mapholisa appoint senior counsel and suggested that the hearing be postponed so he could be better prepared.
When Mapholisa asked her for written reasons why the Committee had decided to charge Noakes, Dhai refused to give them, on the basis that her directions and demands that senior counsel be appointed and her advice be implemented, had not been met.
If you are a lawyer, you will know why this conduct is irregular. After all, as Van der Nest pointed out, the HPCSA’s Preliminary Committee of Inquiry’s job was finished on September 10, 2014 after it had established the “point of inquiry” – the legal term for the essence of the charge against Noakes.
Dhai and her team should simply have patted themselves on the back for a job well done, hung up their HPCSA hats and returned to their day jobs. They didn’t. Instead, they displayed what from the perspective of Noakes’ legal team looks suspiciously like disproportionate enthusiasm and dedication to ensure not just that he was charged, but that he is eventually found guilty.
That tends to raise some red flags legally and ethically speaking, even if you aren’t much of a Noakes fan.
Another example: in one email Terblanche says he asked UCT colleague Prof Wim de Villiers, then dean of UCT Faculty of Health Sciences, to be an expert witness against Noakes.
De Villiers, now Rector and Vice-Chancellor of Stellenbosch University, was the first signatory of a letter UCT academics sent on August 22, 2014, a move unique in the university’s history, to the Cape Times and other media. The letter’s authors, including then head of UCT’s department of nutrition, Prof Marjanne Senekal, attacked Noakes for promoting LCHF and making “outrageous unproven claims about disease prevention” that were likely to cause serious harm. In the end, the HPCSA did not call De Villers as a witness.
Terblanche also suggests in an email that the letter, which he copied and made available to the Preliminary Committee in August 2014, be included as evidence against Noakes.
What is initially puzzling is why the preliminary committee had to meet twice in relation to the complaint against Noakes, before it formulated the charge against him.
At the first meeting on May 22 , 2014 , the committee took two days to consider the original complaint laid Johannesburg dietitian Claire Julsing Strydom, then president of the Association for Dietetics in SA (ADSA), laid against Noakes, and his explanation. The committee felt it did not have enough before it to decide whether or not he should be charged and set a date for a second meeting in September 2014.
All well and good. The ommittee had every right to seek further documentation before coming to a decision to charge against a fellow doctor as serious as unprofessional conduct. It is after all a very serious charge usually reserved for doctors who are fraudsters or murderers.
However, here is a timeline that suggests why the committee didn’t have enough evidence to pin a charge on Noakes in May 2014, but fortuitously did have when it met for the second time on September 10, 2014.
After the committee’s first meeting in May 2014:
- The preliminary committee procured the secret report from retired NorthWest University nutrition professor Este Vorster (who later gave expert testimony against Noakes) in which she refers to a draft press release relating to an upcoming review and meta-analysis supposedly showing that Noakes’ views on nutrition are incorrect;
- The research is published online in July 2014 in the medical journal PLOS (Public Library of Science) ONE as the Systematic Review and Meta-Analysis by Celeste Naude, Marjanne Senekal, Jimmy Volmink and others;
- News of the review and meta-analysis is released in an un-embargoed joint press statement by ADSA, the Nutrition Society of South Africa, the Heart and Stroke Foundation, Chronic Disease Initiative for Africa and the HPCSA Professional Board for Dietetics and Nutrition on July 9, 2014; and
- The UCT Faculty of Health Sciences releases the academics’ letter attacking Noakes to the media on August 22, 2014.
The institutions that collaborated on the Systematic Review and Meta-Analysis research project (nown known as the “Stellenbosch Review”) are: UCT, Stellenbosch University, the Medical Research Council and The Effective Health Care Research Consortium.
Armed with this ammunition, the preliminary committee decided on September 10, 2014 – without giving him a chance to respond – that Noakes should be charged. The HPCSA only gave Noakes notice of the charge three months later. Thus the HPCSA had a three-month head start. Despite that head start, the HPCSA’s case has been beset by delays.
All that evidence falling into the Preliminary Committee’s lap could just have been good luck. Given the conduct of the HPCSA so far, it could also have been a sign of something just a little more co-ordinated at play. And while it could just be coincidence, the timing of the UCT letter could also seem just a little too convenient for the HPCSA’s case.
Noakes’ legal team has expressed concerns at the influence of UCT and Stellenbosch academics who authored the letter, on the conduct of the HPCSA Fourth Preliminary Committee Inquiry: De Villiers, UCT cardiology professor Lionel Opie and nutrition professor Marjanne Senekal, then head of nutrition at UCT, who also signed the letter, were colleagues of Terblanche and White.
Van der Nest also alluded to possible involvement of the South African Medical Association (SAMA) in the prosecution of Noakes, since Dhai and Terblanche have held leadership positions in the organisation, and White is its current president.
That concern can appear even more reasonable, given that the SAMA attempted to withdraw CPD accreditation from speakers at the Old Mutual Health Convention that focused on the science behind low-carb, high-fat in February 2015 after requests to do so by ADSA dietitians. After the exchange of terse correspondence between Pike and SAMA, the CPD points were reinstated.
Bhoopchand, as expected, dismissed any suggestion of SAMA involvement or anything untoward involvement of anyone at all.
Noakes’ legal team remains convinced hat the conduct of the Preliminary Inquiry Committee after its job was done has seriously called into question whether it was unbiased in its decision to charge Noakes.
Adams will give her ruling when the hearing resumes on February 9.
- All the professors named in this report have right of reply. I will be contacting them all for comment.