Court orders Gauteng Health to clear radiation oncology backlog at public hospitals

The Gauteng High Court in Johannesburg has declared the province’s health department’s failure to provide radiation and oncology services to cancer patients “unlawful and unconstitutional.”

The court handed down the judgment on Thursday.

It ordered the Gauteng Health Department to take “all steps necessary” to provide radiation oncology services to patients on the backlog list for treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital.

Court battle

The Cancer Alliance, represented by advocacy group Section 27, filed an application in the High Court in Johannesburg against the Gauteng health department for allegedly failing to spend R784 million allocated by the Gauteng Treasury in 2023.

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The radiation and other surgical backlogs showed that about 3 000 cancer patients were awaiting cancer treatment, some for more than three years.

Judgement

In the judgment, Acting Judge Stephen van Nieuwenhuizen noted that the constitutional rights of patients on the radiation oncology backlog list had been “trampled upon” by the Gauteng Health Department.

Nieuwenhuizen said this was because the ring-fenced funds specifically intended for patients and made available in April 2023 were lost due to the department’s failure to outsource the radiation oncology service and spend such funds urgently before the annual obligation to return funds to Treasury came up.

“The cancer patients on the backlog list are facing life-threatening illness. If they do not receive the radiation oncology treatment, they may not survive. In the absence of such treatment, their health continues to deteriorate significantly.

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“Backlog list patients have already passed away, waiting for such treatment that has not been forthcoming. Actual, irreparable harm has already occurred, continues to occur and is reasonably apprehended,” Nieuwenhuizen ruled.

Backlog list

Van Nieuwenhuizen ordered Gauteng Health MEC Nomantu Nkomo-Ralehoko, head of the provincial health department, Arnold Malotana, and the CEOs of the Charlotte Maxeke and Steve Biko hospitals to update the backlog list of cancer patients awaiting radiation oncology services in the province.

“The respondents are directed to update the backlog list of cancer patients who are awaiting radiation oncology services in Gauteng within 45 days from the date of this order.

“The respondents are directed to take all steps necessary to provide radiation oncology services to backlog list patients who are awaiting treatment at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Gauteng at a public and/or private facility,” Van Nieuwenhuizen ordered.

Updated report

Nieuwenhuizen also ordered the respondents to file an updated report within three months from the date of the order.

“A progress report must be filed on the steps taken to provide radiation oncology services to cancer patients who are on the backlog list in Gauteng and on the first respondents (Nkomo-Ralehoko) long-term plan to provide radiation oncology services to cancer patients at Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital in Gauteng.”

Nieuwenhuizen also interdicted and restrained the department from using the R250 million, which has been allocated specifically to address the radiation oncology backlog in Gauteng pending the outcome and finalisation of the review application.

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