Urgent legal battle: Activists demand action for 3,000 Gauteng cancer patients awaiting treatment

The reality for patients who have not been able to complete their radiation treatment at Charlotte Maxeke is that now they may be pushed to the back of the queue. (Photo: Shiraaz Mohamed)

By Michelle Banda

26 Nov 2024

Cancer activists drag Gauteng Department of Health to court for failure to provide life-saving treatment.

“The unfortunate part is that cancer patients can’t afford any more delays because any delay results in a death. I had a cancer recurrence because I could not get radiation treatment on time. Others don’t get that opportunity to beat cancer twice — they die. In this very month of November last year, I lost a dear friend who was in the same boat as 3,000 cancer patients awaiting radiation treatment and/or surgery.”

These were the words of Lydia Staats, a two-time breast cancer survivor, speaking to Daily Maverick after a pivotal court appearance last week Thursday, 21 November 2024, in a case where SECTION27, representing the Cancer Alliance, is challenging the Gauteng Department of Health and nine others for failing to utilise the R784-million allocated to address radiation and surgical backlogs in the province.

SECTION27 is arguing four main points:

For the court to declare the Gauteng Department of Health’s lack of action in using the funds set for cancer treatment for that cause unlawful and unconstitutional.

Direct department to take necessary steps to ensure waiting patients get the urgent treatment they need, whether through the private or public sector.

Prevent the department from spending the funds on anything outside the scope of treating cancer patients.

Review and set aside the decision to award the planning contract without treatment on the basis that it is irrational.

According to SECTION27 attorney Khanyisa Mapipa, before the court case there were dialogues between Cancer Alliance, SECTION27, the Department of Health and the Treasury to put together a plan on how the funds were going to be spent for the betterment of the patients.

“During that time there was an agreement that the department would outsource services from the private sector because internally they did not have the capacity. They don’t have the machines or the staff. It’s not to say they are not doing the services, but there is a backlog. So the plan was to deal with that and ask if we could use the same mechanism that was used in Covid-19 times to do the procurement quickly and efficiently such that cancer patients could get help.

“An agreement was reached with the Gauteng Department of Health that they were going to expedite the tender process but they didn’t do that. They went on a normal tendering process that took six months to draw up and then another to appoint a service provider. And when they did appoint a service provider it was just for planning and not services or treatment,” Mapipa said.

“However, the contract that was issued had three categories; for oncologists, technical staff medicine, machinery and everything else that goes with the doctors and the third was planning. But planning can’t go alone. It’s irrational to expect that those services can go alone without treatment because these services are time constraints because of the nature of the disease. Whatever patients are planning for now without treatment the plan is useless. All the R17-million spent goes to waste because they would have to redo if and when they decide on treatment. An option would be getting a consolidated contract.”

Against the law

Mapipa said that while exchanging papers with the respondents, the department’s answering affidavit was a simple copy and paste of patients’ medical records, including personal information, which was against the Protection of Personal Information Act.

“They are not making any arguments about the medical information, they are just sharing it, which is contrary to their responsibility under the National Health Act.”

In an answering affidavit, the Gauteng Department of Health argues that there is no backlog; instead they have a “waiting list” that is updated in real time when the patients present to the hospital. However, they did not have a database that could backdate and track patients who had been on the “waiting list”.

As far as the tender process was concerned he said the tender had been reissued and the process was still unfolding.

According to Gauteng Department of Health attorney William Mokhare, from the R784-million budget, R250-million had been used only for planning services.

Mokhare said the department had to distinguish between historical cases requiring treatment, and newer cases needing immediate attention.

“The backlog includes cases that are overdue for treatment but not captured at a specific cut-off date… that’s our understanding of the backlog… The backlog was there before there was an allocation of funds,” he said.

The funds in question were initially made available by the Gauteng Treasury in March 2023 to clear oncology backlogs in the province. Then MEC of Finance Jacob Mamabolo said: “The backlog is because of shortages in both personnel and equipment that emanate, and the knock-on effect of the Covid-19 pandemic that stretched the capacity of the Gauteng health system.

Charlotte Maxeke hospital has an 18-month backlog on radiation treatment. (Photo: Shiraaz Mohamed)

“In efforts to clear the backlog, the Gauteng Provincial Treasury and Gauteng Department of Health have worked with civil society organisations — SECTION27 and Cancer Alliance — in an approach that involves the procurement of the necessary machinery and equipment needed for radiation therapy to assist the patients on the waiting list, particularly given that the nature of the disease requires urgency. I anticipate that this time next year we will be outlining the resolution to this challenge,” Mokhare said.

However, more than a year later little seems to have changed, with civil society organisations reporting at least 3,000 cancer patients awaiting radiation treatment as of 2022. A recent in-depth Assessment of Oncology Services in Gauteng Province by the Health and Wellness Portfolio Committee in the Gauteng Legislature has echoed the multi-faceted factors contributing to the backlog in oncology services.

At the heart of the issues, the legislature notes, is that the province historically has only two main radiology centres, outdated human resources planning for oncology services, the growing demands of Gauteng’s population, referrals of patients from other provinces and foreign nationals seeking cancer treatment and other healthcare services at these facilities.

Crucial in cancer treatment

“The provision of radiation oncology services is crucial in cancer treatment, making this case extremely urgent. When patients do not receive radiation treatment within the recommended three-month time frame, they often experience recurrences of the cancer. This, in turn, requires additional medical assessment, cancer staging, and sometimes further surgery and chemotherapy before they become eligible for radiation treatment again. The delay in integrated radiation oncology treatment results in the tragic loss of more lives among cancer patients. Therefore, SECTION27, Cancer Alliance, and the TAC urge the Gauteng Department of Health to urgently fulfill its constitutional duty of granting these patients access to cancer treatment,” their statement read.

Staats (47), a wife and a mother of two who is based in Springs, 50km east of Johannesburg, told the publication she was a victim of the radiation backlog. After being diagnosed with breast cancer in February 2022, she said that was followed by a mastectomy in November of the same year.

“With my diagnosis, we already knew that the cancer was not only in the breast but had spread to the lymph nodes on my left armpit. And so the resolution was I would do radiation after the surgery. However, I was made aware of Charlotte Maxeke’s 18-month backlog on radiation and so I was placed on the waiting list. However, under normal circumstances it is recommended that you have radiation within three months of the surgery.

“In May 2023 I went for my six-month post-surgery mammogram and ultrasound and they found a suspicious lymph node again on my right side, and a biopsy was done. By June 2023 the results came in and it was cancer again. I had a recurrence because I didn’t get radiation. I had to start all over again and do chemotherapy. The chemo in 2022 was every three weeks; this time, I had to do it weekly.

More aggressive

“What they say is that when cancer comes back it’s more aggressive; the oncologist was also afraid of the recurrence that it might have already spread to my other organs or bones. In between getting chemo, I had to undergo various scans to make sure it had not spread, which found there was no spread to other organs.

“I had three weeks to recover from chemo before the next surgery. In September 2023 I had a second surgery, nine lymph nodes were removed, four tested positive for cancer and they even found a lymph node up on my collar bone. I still needed to radiate to avoid another recurrence. I eventually had radiation only this year from June to July... 16 months later.”

The matter will not be going back to the Gauteng Division of the High Court in Johannesburg. According to Mapipa: “What we have agreed with the judge is that they can decide on the new affidavits based on the papers. We waived the right to have verbal arguments presented on the new information. Both parties have agreed to that, and after this the judge will have everything they need to decide. We hope to at least get a court order before the close of term, which is the 13th of December.” DM

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