Cancer Alliance v MEC for Health, Gauteng

While judgement is still underway, Khanyisa Mapipa helps us understand the case of Cancer Alliance v MEC for Health, Gauteng, and 10 others.

You can listen to this article below, or by using your favourite podcast player at pod.link/oncologybuddies

Section 27(1)(a) of the Constitution provides that everyone has the right to access healthcare services. This right is predicated on the condition that the government has resources available to provide the service. 

The affirmation of the limitation on the right to access healthcare is almost as old as our Constitutional dispensation, with the right having been tested at the advent of our democracy in the Soobramoney  case. 

The Constitutional Court created then a precedent that still holds some thirty years later – where the state’s resources are constrained, the right to access healthcare services can be limited, no matter how grim the consequence. A limitation on the availability of a service based on the availability of resources is logical and constitutionally defensible, but what about a limitation of the right when resources aren’t only available but earmarked and ring-fenced for the service? 

A limitation of this nature must be constitutionally indefensible and yet, it remains a common occurrence in government health facilities with millions of rands returned to National Treasury each year due to underspending by provincial departments of health. 

Cancer Alliance take MEC for Health to court

This is exactly what has happened in the case of Cancer Alliance v MEC for Health, Gauteng and 10 others. In July 2024, the Cancer Alliance, represented by SECTION27, filed legal proceedings against the MEC for Health and Gauteng Department of Health (GDoH), among others, for failure to provide radiation oncology services to approximately 3 000 patients. This failure persisted for a prolonged period with some patients waiting 18 months to three years for treatment that, in terms of their treatment protocol, they ought to have received within 12 weeks of their tumour resection surgery.

Cancer Alliance asked the court for an order: declaring the respondents’ failure to provide radiation oncology services in the public sector unlawful and unconstitutional; directing the respondents’ to update the backlog list of patients awaiting radiation; directing the respondents’ to provide radiation oncology treatment in the public or the private sector; and interdicting the respondents’ from paying, dispersing or otherwise dealing with the R250 million ring-fenced to provide these services. 

Cancer Task Team

The facts stretch as far back as July 2020 when Cancer Alliance first brought to the attention of the then Gauteng MEC for Health, Nomathemba Mokgethi, the growing backlog of patients awaiting radiation oncology services. This plea, followed by a few others, were ignored by GDoH until they culminated in protest action in November 2021. 

The protest forced government to give the issue attention. In March 2022, the MEC for Health established a Cancer Task Team consisting of members of civil society organisations Cancer Alliance and Treatment Action Campaign, alongside the head of hospital services within GDoH, the head of radiation oncology at each of the two public hospitals that provide radiation oncology in the province (Charlotte Maxeke Johannesburg Academic Hospital and Steve Biko Academic Hospital), and various clinicians working in the public sector. 

The Cancer Task Team sat a total of eight times over a period of six months and accomplished nothing. The list of patients awaiting radiation oncology continued to grow, tenders for radiation oncology equipment continued to stall, and GDoH continued to bleed radiation oncology staff. 

The absence of progress was not due to a lack of trying on the part of the civil organisations that sat on the task team. Throughout the life of the task team, Cancer Alliance offered several seemingly viable solutions to the problem which were aimed at keeping government funds within government. 

Proposed solutions

The solutions included, triaging the patients and prioritising treatment for the sickest; this proposal was shot down by the government citing that due to the length of time patients have had to wait for treatment, everyone was equally the sickest patient. 

Another proposal was to run the available radiation oncology machines overnight, offer overtime to staff, and offer treatment right through the day. This proposal was also shot down and government cited that the type of patients who require services in the public sector rely on public transport and would therefore have to be housed in the hospital overnight and the hospitals simply didn’t have enough beds. And so, it continued. 

Eventually Cancer Alliance proposed that government outsource the services to the private sector but only for the backlogged patients. The logic was that the hospitals seemingly had enough capacity to deal with new patients and the decreased pressure would allow GDoH to make arrangements to improve equipment and staff numbers. This proposal was accepted by the department, however, they stated that they didn’t have money to fund the venture. 

A solution found but not achieved

This prompted Cancer Alliance and SECTION27 to reach out to the Gauteng Department of Treasury and following engagements, Provincial Treasury ring-fenced R784 million, to be disbursed in three tranches over three financial years. The first tranche of R250 million was paid over to GDoH in March 2023. 

Following this allocation, Cancer Alliance and SECTION27 attempted to continue engagements with the department including providing suggestions on the most efficient and speedy way to deal with the backlog. Cancer Alliance and SECTION27 convened experts from the National Department of Health, National and Provincial Treasury to guide GDoH on how to make emergency procurements, similar to those we saw during the COVID-19 pandemic, without offending procurement principles. 

The advice from these entities was ignored. Instead, GDoH opted for a long procurement process that culminated in them awarding a tender for radiation oncology planning services, without the accompanying treatment. 

Commencement of litigation

The award of the tender prompted Cancer Alliance to launch the litigation process. As evidenced above, like any reasonable litigant, Cancer Alliance sought to resolve the dispute long before the matter became litigious. It was left with no option but to approach the court for a resolution to the crisis. 

In the court case, Cancer Alliance argued that GDoH had acted unlawfully in failing to provide radiation oncology services to those on the backlog list. In response, the department attested that it had equipment and staff constraints that made it difficult for it to meet its obligations but that it was in the process of hiring further staff and procuring equipment. 

Further, Cancer Alliance argued that the decision to award a tender for planning services was unreasonable given that there was no certainty that patients, after receiving planning services, would be provided with treatment. In response, the department argued that it had the capacity to provide treatment internally – something it had failed to do for years – and that it was undergoing yet another tender process to procure privately sourced treatment services. 

As the case progressed, it transpired through an affidavit that Cancer Alliance forced the department to file in response, that the department had, in fact, not spent a cent of the first tranche of funds allocated and as a result these funds had been returned to treasury. 

It was also revealed that after a year since the tender for radiation oncology planning services was issued, less than 100 patients had received the service. The GDoH was at a grave risk of losing the second tranche of funds which amounted to R261 million. The matter concluded in December 2024 and the parties are awaiting judgment.

The deaths can’t be justified

The right to access healthcare services within the government’s available resources is a constitutionally protected right. However, as demonstrated by this case, ineptitude and a severe lethargy towards ensuring the realisation of this right is perhaps our biggest problem as a country. It’s not possible to say how many people died while awaiting radiation oncology services even when funding for it was made specifically available. Their deaths can’t be justified and their deprivation of access to healthcare is constitutionally indefensible.