An investigation by the SA Human Rights Commission (SAHRC) brought the cancer treatment crisis in KwaZulu-Natal to the public’s attention, demonstrating how a Chapter 9 Institution can serve citizens and call government to account.

But at the same time it raised questions about the commission’s powers of implementation, and what it can do in the face of what could be construed as non-compliance. It takes us back to the perennial question heard so often in South Africa; at what point does a lack of service delivery become a contravention of the human rights provided for in the Constitution?

By now the story is well known. Member of the KwaZulu-Natal Provincial Legislature and the DA’s health spokesperson, Dr Imran Keeka, went public with his concerns about serious shortfalls in oncology treatment at two public hospitals in KwaZulu-Natal.

According to Keeka, efforts to address the matter in the provincial committee on health and within the local legislature failed, and his response was to lodge a response with the South African Human Rights Committee (SAHRC).

He didn’t take the matter to the Health Ombudsman or the Office of Health Standards Compliance, which might have been more likely channels of redress. Instead he lodged a complaint with the SAHRC.

He told Notes from the House that to him this was “a clear denial of constitutionally recognised human rights” and “fell within the ambit of the Human Rights Commission”.

In terms of section 181(1) and 184(2) of the Constitution the SAHRC is specifically mandated to promote, protect and develop human rights and “take steps to secure appropriate redress where human rights have been violated”.

The SAHRC took on the matter as a formal complaint and conducted a full-scale on-site investigation at two hospitals in KwaZulu-Natal, Addington Hospital and the Inkosi Albert Luthuli Central Hospital. Sure enough, there it found two non-functioning radiotherapy treatment devices known as the Varian Rapid Arc Linear Accelerator Machines (VRALA) at Addington Hospital, shortages of other working health technology including CT scanners, and general challenges facing the provision of health care services to oncology patients which resulted in significant delays in their treatment.

The SAHRC concluded that the Department of Health had failed to provide oncology patients with adequate health care services and spelled out a detailed strategy to address the situation. Among its demands were:

• The immediate repair and monitoring of the necessary technology machines, regardless of contractual disputes yet to be finalised through the courts;
• A management plan to deal with the backlog through entering into interim public private partnership arrangements with private health care services; and
• An interim referral management plan to facilitate referral of patients to private service providers for screening, diagnosis and treatment of cancer.

The SAHRC also requested a detailed list of the patients awaiting radiotherapy treatment and the duration of their waiting periods for treatments and a list of cancer patients who had died while waiting for treatment or undergoing treatment at Addington and Inkosi Albert Luthuli Central Hospital Hospitals.

The department was required to provide the commission with a detailed time-bound plan of action for the implementation of the recommendations on receipt of the commission’s report.

In addition to these findings, the commission also determined that the complaint was in breach of the right of access to health care services as enshrined in section 27 of the Constitution, as well as other constitutional rights to life and human dignity.

The dispute has now dragged on for 18 months and last week the SAHRC was invited by the national Portfolio Committee to present its report. Last week’s Portfolio Committee meeting heard that equipment at Addington Hospital was still in the process of being repaired and all oncology patients were being referred to the Inkosi Albert Luthuli Central Hospital for treatment.

The commission established that there was still a serious backlog in the provision of treatment of oncology patients: the average waiting period for a patient to be seen by an oncologist was five months and those waiting to receive radiotherapy usually wait eight months. It was told that access to the hospitals to monitor the implementation of the SAHRC’s recommendations was being obstructed.

Committee members expressed concern about how oncology services in the province had come to a standstill and the impact this was clearly having on human’s lives.

But there were also questions that related to the status of the SAHRC’s recommendations. Claudia Ndaba of the ANC welcomed the commission’s presentation but wanted to know if its recommendations were binding and asked what the consequences of non-compliance would be? Amos Mahlalela of the ANC asked what the commission expected from the committee and what the commission was doing about the department’s failure to respond.

Andre Gaum, commissioner of the SAHRC, confirmed that recommendations of the Commission were binding, but asked, to what extent? The commission could take steps to procure appropriate redress, for example it had powers to take a recalcitrant respondent to court.

But according to Professor Bongani Majola, chairperson of the SAHRC, the success of Chapter 9 Institutions depended on the support of Parliament via its committees. The oversight role of the committee was very important in ensuring work was done, he said. The SAHRC asked the committee to call the KZN provincial department of health to account on the commission’s findings and said the committee could also monitor compliance of the commission’s recommendations.

Majola said the rights of patients included the right to access health care and the mandate of the commission included monitoring, protection and promotion of observance of rights. In this regard, the present issue was an urgent one as cancer was an illness that needed to be treated quickly.

The committee responded that it needed first to hear from both sides. The chairperson said the committee was not dismissing the SAHRC’s report, but it needed to engage with the national and provincial health departments. She had it placed on record that the committee was not defending any province.

Being a former health care worker herself, the chairperson said health, by its very nature, was emotive but it was very dangerous to provide solutions on the basis of emotions. It was important to be led by the facts alone. While there might be a crisis in KZN, the committee needed to undertake an oversight visit to the province to see for itself the extent of the crisis.

Additional information sourced from the Parliamentary Monitoring Group

Photo: Minister of Health Dr Aaron Motsoaledi during National Health Insurance white paper briefing at Tshedimosetso House in Pretoria, 29 June 2017. (Photo: GCIS)