The Gauteng Department of Health (GDoH) will have to update and maintain the backlog list of cancer patients awaiting radiation oncology services in Gauteng and take all necessary steps to provide treatment to those patients, whether at public or private facilities.

This is in spite of the GDoH turning to the Supreme Court of Appeal to appeal a judgment issued earlier, in terms of which it was ordered to come to the aid of these patients. 

While the pending appeal would ordinarily suspend the order, the Cancer Alliance, supported by Section27, turned to the Gauteng High Court, Johannesburg, to ask that the order remain in force pending the outcome of the appeal.

Judge Fiona Dippenaar, in ruling in favour of the Cancer Alliance, stressed that the backlog meant that patients were being denied treatment within the treatment windows required for radiation to be effective, which had “dire consequences”. 

She found that patients faced “irreversible and permanent harm” that affected not only their health but also their families and loved ones, which in turn created a broader public health and societal crisis.

The judge noted that some of the irreparable harm had already occurred as patients had died while waiting for treatment, and others had seen their cancer metastasis, rendering such patients ineligible for oncology radiation treatment.

“No irreparable harm to the respondents’ (department) appeal rights would follow if the order is enforced in the interim and the appeal would not be rendered nugatory or redundant.”

Judge Dippenaar added that the department’s constitutional duties necessarily include taking necessary steps to provide radiation oncology services to patients who require them, including the patients on the backlog list.

In this regard she said: “The need to appreciate the full extent of the crisis and how many patients actually require time sensitive radiation oncology treatment is manifest, so that vulnerable cancer patients do not slip through the cracks of the public healthcare system”. 

Judge Dippenaar said to direct in favour of the department that the earlier order is suspended pending the outcome of the appeal, may well be the death knell for many vulnerable cancer patients on the backlog list who have been waiting for years for life saving treatment. 

“They do not have the luxury of time,” she noted.

In March this year the court declared that the GDoH’s failure to develop and implement a plan to address the oncology backlog was unlawful, unconstitutional, and in breach of various sections of the Constitution. 

The judge ordered the department to update and maintain the backlog of cancer patients awaiting radiation oncology services in Gauteng and for it to take all necessary steps to provide treatment to those patients, whether at public or private facilities.

The GDoH and other respondents meanwhile obtained leave to appeal that judgment to the SCA, which subsequently caused the Cancer Alliance, through an urgent application, to apply for the order to remain in force pending the appeal.

They argued that exceptional circumstances exist in this case in that this is a matter of life and death for cancer patients who will suffer irreparable harm if the order is not immediately enforced.

It said that the government cannot delay its constitutional duties while patients’ lives hang in the balance.

In opposing the urgent application, the department forwarded technical arguments, which included that the matter is not urgent, as it was launched months after they had obtained leave to appeal.

It also submitted that the application is legally incompetent as this matter is now before the SCA and the high court’s functions regarding this matter has come to an end. Their arguments were, however, rejected by the court.

zelda.venter@inl.co.za

Source link