The unacceptable, unlawful delay in providing treatment to Gauteng cancer patients, which has resulted in some of them dying, has been slammed by the Gauteng High Court (Johannesburg), which ordered the Department of Health to take “all steps necessary” to provide radiation oncology services to those on the backlog list at Charlotte Maxeke and Steve Biko Hospitals.
The court ruled that the department’s failure to implement a plan to provide timeous treatment to these patients was also unconstitutional, reports Daily Maverick.
The order comes after the Cancer Alliance, represented by lawyers from SECTION27, took health officials to court for failing to use R784m allocated in March 2023 by the Provincial Treasury for addressing radiation and surgical backlogs.
In the judgment handed down by Acting Judge Stephen van Nieuwenhuizen on Thursday, he said the constitutional rights of patients on the radiation backlog list had been “trampled upon”, and that ring-fenced funds went unspent after the department failed to outsource radiation services.
“These patients are facing life-threatening illness. If they do not receive the treatment, they may not survive. In the absence of such treatment, their health continues to deteriorate significantly,” he said.
Some patients had already died while for treatment that never came, he added. “Actual, irreparable harm has already occurred, continues to occur and is reasonably apprehended… The provincial Health respondents, however, ignore this.”
Gauteng Health MEC Nomantu Nkomo-Ralehoko, head of the provincial Health Department Arnold Malotana, and the CEOs of Charlotte Maxeke and Steve Biko hospitals, were given 45 days to update the backlog list of patients awaiting radiation.
They have to “take all steps necessary to provide radiation oncology services to backlog list patients at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Gauteng, at a public and/or private facility”.
They were also ordered to file an updated report within three months, giving a progress update on steps taken, as well as Nkomo-Ralehoko’s long-term plan to provide radiation services at both hospitals.
Cancer Alliance director Salomé Meyer, told Daily Maverick the judgment was a “landmark decision” and “a significant victory for health and human rights in South Africa”.
Fumbled funds
The judgment noted that when the allocation of R784m was announced in March 2023, the Provincial Treasury explicitly stated that the money would be used to “clear the backlog”.
As the funds were intended for use over the three-year medium-term expenditure framework, Gauteng Health set aside R250m for outsourcing radiation services in the 2023/24 financial year and R261m for 2024/25.
While the department awarded a one-year tender worth just more than R17m to Siemens Healthcare in February 2024 for “planning services”, the payments for these services did not kick in before the end of 2023/24. And no tender for outsourced radiation treatment services was ever awarded.
The department failed to use any of the R250m allocation by the end of the 2023/24 financial year, meaning the funds were returned to Treasury unspent.
It was alleged by the Cancer Alliance that as of 15 October 2024, the department had not spent any of the R511m allocated between 2023/24 and 2024/25 to provide urgent services to patients on the list.
In the Cancer Alliance’s court submissions, Meyer argued that the department had been “opaque” about what the planning services provided by Siemens Healthcare entailed.
“(The provincial health respondents)] allege that the applicant (Cancer Alliance) suffers no harm with the awarding of the tender to Siemens Healthcare,” stated the judgment.
“The provincial health respondents appear insensitive and dismissive of the actual harm that has been … and is being suffered by the cancer patients on the backlog list, to whom they owe (undisputed) constitutional obligations.”
The department will again be required to return any unspent funds for clearing the backlog to the provincial Treasury at the end of the 2024/2025 fiscal year.
Meyer said the department’s lack of openness and transparency was a critical issue.
“They chose not to collaborate or improve cancer care services, leaving patients who have been waiting for extended periods without treatment or even any updates,” she said.
See more from MedicalBrief archives:
Gauteng cancer patients still awaiting lifesaving treatment
Unspent R250m cancer treatment funds returned to Treasury
Gauteng Health accuses Cancer Alliance of interference as case postponed
Gauteng Health sued over unspent cancer millions