The Department of Health in KwaZulu-Natal faces legal action from state cancer patients running into millions following the recent damning finding that it had violated their rights to care and treatment.
“We are already seeing a spike in queries following the ruling and are consulting with some clients around this matter. The ruling against the department by the South African Human Rights Commission (SAHRC) is precedent-setting, even though it is yet to be tested in court,” Durban lawyer, Ahmed Amod told the Sunday Tribune.
The SAHRC report found that the department failed in its obligation to provide adequate oncology services to cancer patients, and that the department had failed to procure, maintain or put in place CT scanners within a reasonable time.
The potential law suites will put further pressure on the department which is already facing more than R10 billion in negligence claims and a buckling health system.
However, Amod has cautioned against depending on the ruling alone to sue the department and urged patients to consider their options carefully.
“The ruling cannot be used as prima facie evidence on its own in a civil suit but can certainly be used to support a potential case. The claimants will also need to prove without doubt that their cancer was adversely affected by the actions of the department.
“A strong argument could well be made by patients whose cancer progressed while waiting for treatment, or where the cancer has become palliative, a patient may have become palliative rather than curative as a result of the delay.
“Given the costs of cancer care and treatment, a potential case against the department could run into millions, but each one will need to be looked at on its own merit based on the facts at hand,” Amod said.
The department has insisted that a shortage of oncologists in the province is to blame for the delay in treating cancer patients, while others have said oncologists left because of the poor conditions.
Despite growing calls for provincial health MEC, Dr Sibongiseni Dhlomo, to be removed from office over the crisis, the ANC closed ranks around him this week, with Premier Willies Mchunu insisting Dhlomo was not to blame.
“I have to satisfy myself there was dereliction of duty on the part of the MEC. I have not. I have to be fair to the MEC. There have been interventions but perhaps not adequate“ said Mchunu, adding that Treasury would step in to take charge of administration of some of the tenders in the provincial department of health.
“They are setting up the HOD to take the fall for the MEC. That’s obvious,” said provincial DA spokesperson Dr Imran Keeka, whose complaint to the SAHRC triggered the investigation.
“I won’t be surprised if the HOD is suspended over this, which would be unfortunate as the common denominator in this crisis is Dhlomo, and the party seems to defend him despite his poor leadership.”
The Health & Other Services Personnel Trade Union of South Africa also said the buck stopped with the MEC.
“The oncology crisis started before the appointment of this HOD as the accounting officer,” said spokesperson Noel Desfontaines. “The MEC made representations to the health portfolio committee and the public accounts committee confirming he was addressing the matter, but nothing was done the buck stops with the MEC.”
SUNDAY TRIBUNE