The SA Human Rights Commission presented its “KZN Oncology” Report to the Committee following a complaint from Dr Imraan Keeka, Democratic Alliance Member of the KZN Provincial Legislature. The complaint was based on lack of health care services to oncology patients in the KZN province. Following investigation, the Commission established the two Varian Rapid Arc Linear Accelerator Machines were not functional and that all oncology patients were referred to the Inkosi Albert Luthuli Central Hospital for treatment. The Commission further established there was a backlog and delay in the provision of treatment of oncology patients. Recommendations of the Commission were also presented.
In response to the Report, the Department of Health said the backlog in the treatment of oncology patients was caused by staffing constraints including the shortage of specialist oncologists, medical officers and radiotherapists. Members of the Committee were concerned about the backlog and long period for waiting for care – the Committee wanted more information about this. Further questions were raised about the non-functionality of the machines, why oncologists were leaving the hospitals, binding nature of the Commission’s recommendations and consequences of non-compliance. Members wanted to know if the Commission engaged with the Ombudsman and Office of Health Standards Compliance, expectations of the Committee by the SAHRC and legal action taken by patients.
The Committee emphasised that it was important to hear from all stakeholders involved before any conclusions were reached – this was not to say the Report of the Commission was in any way doubted. The Committee also endeavoured to embark on an oversight visit to the KZN province so Members could make their own determinations on the extent of the crisis.
SA Human Rights Commission Briefing on the “KZN Oncology” Report
Prof. Bongani Majola, Chairperson, South African Human Rights Commission (SAHRC), took the Committee through the Report of the Commission beginning by way of background – on 19 February 2016, the Commission received a complaint from Dr Imraan Keeka, Democratic Alliance Member of the KZN Provincial Legislature. The complaint related to insufficient and non-functional radiotherapy treatment devices, known as the Varian Rapid Arc Linear Accelerator Machine (VRALA), at Addington Hospital and other challenges regarding the provision of healthcare services to oncology patients in the KZN Province. There were also delays in the treatment of oncology patients which the complainant attributed to the shortage of functional health technology including CT Scanners. The Department of Health (DoH) failed to provide oncology patients with adequate health care services.
The Commission conducted a preliminary assessment of the complaint and determined it related to the right of access to health care services, as enshrined in section 27 of the Constitution, as well as other interrelated rights that were implicated such as the right to life and human dignity.
On 4 May 2016, the Commission wrote to the DoH, in which it set out the allegations of the complainant and afforded the Department an opportunity to respond.
On 8 June 2016, DoH provided a response to the Commission advising that:
- There were 18 CT scanners at various health establishments in the KZN province of which 17 were fully functional. One CT Scanner at Ngwelezane Hospital was awaiting installation upon finalisation of the preparation of its infrastructural site.
- The Department procured four additional CT scanners which were allocated to Addington Hospital, Greys Hospital, King Edward VIII Hospital and Empangeni Hospital respectively. The DoH also stated that with the provision of these additional CT scanners, there would be a sufficient number of functional CT scanners to cater for oncology patients in the KZN Province.
- The Department also provided information reflecting the status of the existing CT scanners and advised it had a Service Maintenance Agreement (SMA) in place with respect to 50 percent of the CT scanners and was in the process of finalising SMAs for those that did not have any.
- Regarding the status of the VRALA machines, the DoH advised there were two VRALA machines at Addington Hospital which were not functional. A service provider was appointed to undertake repairs to the machines. One of the VRALA machines was working in March 2016 but had broken down in November 2016. The Department was conducting an investigation into certain matters relating to the SMAs applicable to VRALAs.
- Prof Majola said the Commission wrote to the Department again on 4 August 2016 and a response was received on 12 January 2017 where the DoH advised that:
- It had prioritised the expansion of its oncology services at the Ngwelezane, Madadeni and Port Shepstone Hospitals which would be finalised within the next five years
- It attempted to recruit specialist oncologists to mitigate the shortage of oncologists
- The oncology services at Addington and Inkosi Albert Luthuli Central (IALC) Hospitals were combined due to a shortage of staff and the loss of oncologists in both hospitals.
- Over the past six months, the Department lost four oncologists at IALC Hospital and two from Addington Hospital. The Department conceded the shortage of oncologists had direct impact on the time patients waited in order to access treatment.
The Commission noted that despite the response from DoH being comprehensive in nature, it did not fully address the specific issues or concerns initially raised by the Commission which included:
- The current status of the two VRALA machines
- The interim measures by DoH to ensure the VRALA machines were being adequately maintained/repaired without compromising the patient’s right to access necessary healthcare treatment
- Steps to address the increased backlog of patients awaiting treatment
- Information regarding the average waiting period for a patient to be seen by an oncologist/for a patient to receive radiotherapy
On 9 March 2017 DoH advised the Commission that:
- The VRALA machines at the Addington Hospital were not functional – the Department was finalising an addendum to the main SMA contract. It further advised that the issue pertaining to the maintenance contract for the VRALA machines was still under investigation
- The DoH advised that the average waiting period for a patient to be seen by an oncologist was five months whereas those waiting to receive radiotherapy usually wait eight months -a process was underway to re-instate functionality of the VRALA machines.
- The DoH denied these delays and that the backlog of patients was caused by referral of patients from Addington Hospital. The DoH instead stated the backlog in the treatment of oncology patients was caused by staffing constraints including the shortage of specialist oncologists, medical officers and radiotherapists – the DoH devised an integrated approach to dealing with the backlog.
- The Commission conducted inspections in loco at both Addington and IALC Hospitals on 15 and 16 February 2017. During the inspections, the Commission interviewed staff and patients and established the two VRALA machines were not functional and that all oncology patients were referred to the IALC Hospital for treatment. The Commission further established there was a backlog and delay in the provision of treatment of oncology patients.
Prof Majola highlighted that, in terms of the findings of the SAHRC, it was found the respondents violated the rights of patients with cancer at the Addington and IALC Hospitals to have access to health care services as a result of their failure to comply with applicable norms and standards as set out in legislation and policies by failing to:
- Evaluate and identify the need for functional equipment such as CT scanners and VRALA machines within a reasonable time
- Procure, maintain and/or put in place adequate functional equipment such as CT scanners within a reasonable time
- Recruit and retain suitably qualified staff including oncologists, radiotherapists, medical officers and oncology nursing staff in the KZN province
- Monitor and evaluate the health needs of oncology patients in the province in time to implement appropriate interim models such as sufficient private-public partnerships to meet needs
- The respondent’s failure to provide access to adequate oncology services also violated interconnected, interdependent rights to human dignity and the life of affected patients.
The Commission made the following recommendations that the respondents were immediately required to address:
- Repair and monitor all the health technology machines including CT Scanners and VRALA machines regardless of contractual disputes yet to be finalised through the courts
- Adopt a management plan to deal with the backlog through entering into interim public private partnership arrangements with private oncologists, medical officers, radiotherapists and oncology nurses
- Adopt an interim referral management plan to facilitate the referral of patients to private service providers for screening, diagnostic and treatment of cancer
- Prof Majola outlined respondents were required to report to the Commission within ten days of this report in relation to:
- Progress in recruiting the Head of the Clinical Unit for Oncology, special oncologists, medical officers and radiotherapists at Addington and IALC Hospitals.
- The status of immediate interim measures and action plan to be implemented to reduce the backlog in the provision of oncology services including steps to be taken to acquire the services of the private sector to support the remedial action
- Detailed plans to be implemented to efficiently manage the current crisis in oncology services at the Addington and IALC Hospitals, and throughout the KZN province, including plans to communicate with known affected patients
- The process initiated by the Department to engage the private sector to take on priority cases for both radiotherapy and chemotherapy
- The details relating to the private-public partnership between the Department and Impilo Consortuim. In particular, the National Department was required to report to the Commission on the success of the public-private partnership and viability of rolling out to other hospitals in the KZN province
- The specific types of health care treatment provided to the oncology patients currently awaiting radiotherapy or chemotherapy in the province including transfers
- Addington and IALC Hospitals were required to furnish the Commission with:
- A detailed list of the patients awaiting radiotherapy treatment at the Hospitals including duration of waiting periods for treatments
- A list of cancer patients who had passed away whilst waiting for treatment or undergoing treatment at Addington and IALC Hospitals. This must also include the cause of death in respect of each and every deceased patient.
Prof Majola said the ZN provincial and national Department of Health were required to develop a strategy and or programme to meet the current medical staffing challenges in the KZN province. DoH must also provide the Commission with:
- Human Resources retention plan and immediate actions to attract and retain the relevant oncologists, radiotherapists and other skills and specialties in the area of oncology
- Details of service agreements for the maintenance of health technological machines at Addington and IALC Hospitals.
- Evaluate and prioritise the expansion of oncology services at Ngwelezane, Madadeni and Port Shepstone Hospitals
- Prioritise capacity building at administrative level and retention of professional health care workers including specialists, registrars, medical officers and nurses
- The KZN provincial DoH, in collaboration with the National Department of Health, was required to prioritise procurement of essential health technology machines for screening, diagnosing and treating cancer
- The respondents were required to provide the Commission with a detailed time-bound plan of action for the implementation of the recommendation within 30 days of receipt of this Report
- The Commission shall, in addition to the parties, furnish this Report to the Speakers of the National Assembly and KZN Provincial Legislature, the KZN Provincial Health Council, Office of the Ombudsman for Health and the Premier of the KZN province
Prof Majola said that currently, the DoH had furnished the Commission with three responses dated as follows:
30 June 2017: Response One
- The service provider responsible for the VRALA machines was instructed to assess the two machines at Addington Hospital and report to the DoH regarding repairs required
- The DoH held a meeting with the private sector in order to seek its assistance in the provision of oncology services
- Agreements were made with the Hopelands Oncology Group as well as the Rainbow Oncology Group to assist with seeing patients.
- Vacant posts were advertised however no applications were received for the post of the Head of the Clinical Unit: Oncology at the IALC Hospital
- The backlog of patients from Addington Hospital, who were currently awaiting radiotherapy treatment, was approximately 6-7 months while at the IALC Hospital, the approximate waiting period was 7-8 months
- The KZN Provincial Treasury will be taking over the Supply Chain Management (SCM) functions of the provincial DoH and all SCM backlogs will be addressed by January 2018
20 July 2017: Response Two
- DoH met with Varian Medical Systems International (Varian) regarding repairs of the VRALA machines and it was agreed Varian would be responsible for keeping the machines operational
- The SMAs for all health technology equipment would only be finalised once an assessment of machines was completed
- The vacant posts were re-advertised
28 July 2017: Response Three
- The DoH received preliminary feedback from Varian indicating one of the VRALA machines would be easier and faster to repair than the other one
- On 1 July 2017, Joint Medical Holdings (JMH), a group of private oncologists, started consulting with patients at Ngwelezane Hospital and Lower Umfolozi War Memorial Hospital pro bono. The DoH accepted a proposal from JMH to extend its assistance to patients in Northern KZN at a cost, in their private rooms, and the DoH requested the KZN Provincial Treasury to approve a deviation for a period of three months.
- The DoH was working with the KZN Provincial Treasury to fast track procurement of medical equipment – the process is ongoing
In terms of ongoing monitoring by the Commission at Addington and IALC Hospitals:
- The VRALA machines were currently non-functional
- There were no oncologists at the IALC Hospital
- There was currently a waiting period of approximately nine months for new appointments for oncology patients
- The DoH secured the services of consultants from Rainbow Oncology Services to assist, however the consultants only attended to patients twice a week (Tuesdays and Thursdays) for a maximum period of two hours
-Monitoring was constrained due to full access being denied at the aforesaid hospitals
Dr S Thembekwayo (EFF) felt the presented demonstrated enough evidence in terms of the Report stemming from the complaint laid by Dr Imraan Keeka. There was indeed evidence of a shortage of oncologists. The Commission should look at why the oncologists left the hospitals involved and ascertain reasons for their departure – such findings could assist in recruiting new oncologists.
Ms C Ndaba (ANC) welcomed the presentation and questioned the challenges related to the SMAs. Were recommendations made to the DoH binding and what were the consequences of non-compliance? How many patients died and how many were affected as a result of the non-functionality of the machines and long wait? What was the role of the Ombudsman and Office of Health Standards Compliance in all of this?
Mr A Mahlalela (ANC) also welcomed the presentation and then asked what the expectation of the Commission was of the Committee. What was the Commission doing about the failure of the respondents to respond? Was the visit to the two hospitals a surprise visit or an arranged one? How did the Commission come to the conclusion that the respondents failed to comply with applicable norms and standards as set out in legislation and policies? He then wanted to know if the Commission made assessment and satisfied itself of the reason for the shortage of staff as provided by the respondent. Was the reason valid? What was the Commission’s analysis of the reason for the dispute? What was the Commission’s analysis of the reason why 50% of the machines were not functional? He queried if the Commission interacted with the Office of Health Standards Compliance concerning its findings. Was the Commission doing a comprehensive investigation of the whole health systems in the KZN Province?
Ms L James (DA) asked which rights of the patients were violated and if legal action was taken by the patients. Concerning the Ngwelezane Hospital, she wanted to know if there terms of agreements on how the services will be delivered. Why did the MEC not answer when the Commission inquired about the services of the oncologists? How was the KZN provincial DoH going to recruit oncologists after the saga was splashed in the media? Did the KZN provincial DoH have plans to retain oncologists already employed?
Ms A Steyn (DA), visiting from the Portfolio Committee on Agriculture, Forestry and Fisheries, felt it important to remind the Committee that it was dealing with lives – the situation in KZN was a serious case of neglect. What was the role of the National Minister in all of this? What was the reason for KZN being unable to recruit new oncologists? Where were patients going for treatment? What was currently available in KZN?
Dr P Maesela (ANC) said there was overreliance on scanners - the Commission and the DoH should work together to solve this problem.
Mr S Jafta (AIC) asked if the Report was only based on the two hospitals referenced or the KZN province as a whole.
The Chairperson asked if there were people with health expertise in the Commission. Did the Commission engage with the DoH’s Head of Department in terms of the Department’s response?
Dr Thembekwayo asked how monitoring would be done if the Commission already noted that it was being constrained in monitoring the hospitals – who was denying the monitoring being done?
Prof Majola reminded the Committee that the Commission was newly established by the President and only began its work in January this year. With the SMA challenges, the mandate of the Commission did not include looking at such Agreements - the Commission monitored the work of the Department. The Commission was trying to get information on the number of patients that died but there was no official record from the Department yet. The Ombudsman did not play much of its role in this issue - this was because the matter being dealt with by the Commission was not medical but factual i.e. whether the machines were working or not. The Commission however was in frequent communication with the Ombudsman.
In terms of the expectation of the Commission, the success of Chapter Nine Institutions can only succeed with the support of Parliament via its Committees. The oversight role of the Committee was very important in ensuring work was done. The Committee should call the KZN provincial DoH to account on the findings of the Commission’s Report. The Committee can also monitor compliance of the Commission’s recommendations. In terms of the refusal of the province to respond to the Commission’s preliminary findings, government had 60 days in which to respond – this was clear in the Act. Failure to respond showed there was no opposing presentation to the findings made against the institution – the matter was that people were dying and the right to life was of the most paramount human rights for the Commission to prioritise. In the Commission’s view, in light of the urgency of the situation, repairing of the machines, recruiting of oncologists and specialists to operate the machines and drastic reduction of waiting periods, was the most important action to be taken for the patients affected. This was more urgent, at this stage, then the provincial DoH’s lack of response to the Commission. This was compounded by the fact that cancer was an illness which needed to be treated quickly – prolonged periods waiting for treatment resulting in the cancer spreading and less chance for the treatment to be effective.
There was a lot of speculation relating to why people left KZN apart from seeking a better salary. Most oncologists left out the province out of frustration caused by non-functional machines. Most of them thought they were working in vain if the machines were not working. Other professionals left because of lack of medicines. Other reasons for exit included change of political heads. Scanners broke down because of lack of training. A comprehensive investigation of the health system of the KZN province was the main target for the Commission but the oncology issue became more urgent. The lack of resources was also a contributing factor.
Prof Majola said the rights of patients included the right to access health care. Patients can litigate against the respondents but most of them were poor. The Commission had the right to help and litigate on their behalf. The provincial government was paying for the Ngwelezane arrangement. The Commission had no knowledge of the DoH’s plan to retain oncologists especially since there were no oncologists. It was a good idea for Departments and Commission to work together instead of playing the blame game. However, the mandate of the Commission included monitoring, protection and promotion of observance of rights – in this regard, the present issue was an urgent one.
The Report of the Commission was limited to the two hospitals that provided oncology services. The Commission did not have health experts but relied on organisations that provided specialities. The Commission could not do a comprehensive investigation because people were dying and the complainant was waiting for an answer.
Ms Priscilla Jana, Deputy Chairperson, SAHRC, said no matter has come before the Commission for litigation. For now, the Commission was working towards popularising itself since it was not well known in the community.
Mr Andre Gaum, Commissioner, SAHRC, said recommendations of the Commission were binding but to what extent was the key question. The Commission could take steps to procure appropriate redress. It also had powers to take matters to court.
Ms Tanuja Munnoo, KZN Provincial Manager, SAHRC, said the visit of the Commission to the hospitals involved were impromptu. During the nine month waiting period, no treatment was given to patients but there was palliative care. There was no specific treatment during the waiting period.
The Chairperson felt the Commission should have visited other areas to ascertain what was working and why oncologists were leaving. The Committee needed to have a balance in the information it received. This was not to say that the Committee was dismissing the Report of the SAHRC. The Committee would embark on an oversight visit to the KZN province. It was important for the Commission to engage the Office of Health Standards Compliance as it was mandated to deal with issues of non-compliance.
Ms Steyn responded that she was not sucking it from her thumb that the KZN DoH was lying – she made this observation herself from the Report of the Commission. Perhaps “lying” was not the best term to use but false or wrong information was being provided to the Commission by the provincial Department. She was not trying to dictate to the Committee or Chairperson on how to conduct its work but she was very concerned that many of the issues under discussion occurred even before 2014. Cancer was a curable disease if diagnosed early enough but patients in KZN were forced to wait for prolonged periods to receive treatment.
The Chairperson emphasised that the Committee had not yet interacted with the national or provincial DoH on the matters raised today – the Committee was responsible from hearing from both sides before conclusion was made. She placed it on record that the Committee was not defending any province.
Prof Majola said the Commission spoke to the MEC who said the oncologists were leaving for private sector – the Department itself would be in a better position to track down people who had left the hospitals. In the concluding paragraph of the submission made by the KZN DoH itself, on 25 May 2017, it said “the KZN health oncology services were in a crisis especially with the shortage of appropriately trained doctors and functional medical equipment. Various solutions were tried with no success but there was a commitment from all oncologists (public and private) to finding a solution”.
Being a former healthcare 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 see for itself the extent of the crisis.
Mr Mahlalela said the Committee could not enter into debate on the correctness of the Commission’s Report – this was not the purpose of today’s meeting. Now that the Committee had been briefed by the SAHRC, it would meet with both the national and provincial Departments to deal with the issues raised by the Commission and give the Department a chance to respond to what was being said. The Committee could from there make a determination on whether there was a crisis – a determination could not be made by only hearing from one side.
Dr Maesela appreciated the briefing by the Commission and said the Committee did not doubt its Report but facts needed to be verified. The Committee had a duty to listen to all stakeholders before a final conclusion was made on remedial steps to be taken.
Ms Steyn said Ms P Kopane (DA) did visit KZN but was denied access to the hospitals – this was something to be raised with the Department because all Members had the right to conduct visits to verify information. While the Committee was deliberating, people were dying.
Prof Majola said the Commission did not engage with the Office of Health Standards Compliance but did furnish the Office a copy of the Report.
The Chairperson said the Committee would call the Department – the Committee was committed to the lives of people.
The meeting was adjourned.