SIXTEEN cancer patients scored a legal victory after they turned to court to overturn the decision by a Cape Town hospital to terminate the practicing privileges of one of the country’s top oncologists, thus depriving their right to be treated by him.
The patients - one who had meanwhile died - turned to the Western Cape High Court following the decision by the Life Vincent Pallotti Hospital which resulted in Dr Louis Kathan no longer being able to treat them.
Kathan is said to be a leading stereotactic and brain tumour oncologist. He was responsible for bringing cutting-edge technology in cancer treatment to the hospital. The hospital has a very specialised and unique cancer treatment machine, which permits non-invasive radiotherapy technology that can adapt to a patient’s treatment plan based on their type of cancer.
It is also one of a few hospitals in the country with an additional specialised type of machine also used in the treatment of cancer patients. Kathan, who is regarded as head and shoulders above other oncologists, is highly skilled in the operation of these machines.
About 18 months ago, the hospital terminated his practising privileges. The termination did not take place with immediate effect but was delayed by a few months. The decision was made because Kathan was accused of making certain homophobic, racist, and sexist remarks while at the hospital.
He vehemently denied these allegations and said that his words were taken out of context. He said that as a gay man of colour himself, he is neither racist, homophobic or sexist.
The patients meanwhile told the court that the effect of the termination of his services at this hospital was to deprive them, as well as the public, of the best cancer treatment that they can receive.
They argued that Kathan’s termination was irrational and unlawful and contended that the hospital did not correctly apply their policies when terminating Kathan’s practising privileges. The court was told that after deciding to terminate his services, the hospital only implemented this decision months later.
The hospital’s policies also came under judicial scrutiny, as it required rehabilitation for misconduct, unless the conduct posed a threat to the hospital, which in this case it did not. The court found that the punishment meted out to Kathan was inconsistent with the hospital’s policies and it violated the constitutional rights of the patients whom he treated there.
Judge Derek Wille said what is significant in this case is that the applicants (patients) were never invited to submit representations to the hospital. The hospital respondents contend that the applicants have no legal standing to challenge its decision.
The judge, however, said the decision had profound consequences for the applicants, and because of these consequences, they have a direct and substantial interest in whether the termination decision was taken lawfully.
He commented that the applicants had developed trust and confidence in Kathan’s ability to treat them. “The termination decision deprived the applicants of their right to access to healthcare, dignity, freedom of the person, and the right to make medical decisions,” the judge said in declaring the termination decision invalid.