Labour department health and safety inspectors have ordered a total and immediate shutdown of East London’s Frere Hospital over concerns that its measures for stopping the spread of Covid-19 — including access control — are inadequate.
The labour department and provincial health authorities are now set for an unprecedented legal fight to test whether labour law safety provisions trump Frere’s mandate to provide medical care, and the public’s right to receive treatment, especially during a pandemic.
Health department spokesperson Sizwe Kupelo confirmed late on Friday that the department had lodged an urgent court interdict to challenge the notice issued by labour officials.
The shutdown order, in the form of a Prohibition Notice in terms of the Occupational Health and Safety Act, was served on Frere Hospital acting CEO James Thomas on Tuesday by East London-based labour inspector Apiwe Maxontana.
Despite efforts since then by Frere management to get the labour department to back down, director-general Thobile Lamati has stood firm, DispatchLIVE understands, refusing to withdraw the notice and asserting that the health and safety of employees and patients are equally important.
Kupelo said: “It [the prohibition notice] is a nonsensical decision. You cannot in the middle of such a crisis walk into a hospital which has been operating for decades and take this route. We are applying for an interdict. It’s an urgent matter, it’s something which cannot be allowed.
“There are people so scared of the virus they try every trick on earth to frustrate the department. Instead of focusing on the virus, we are made to focus on other things.”
Three sources with knowledge of the issue indicated to the Dispatch early on Friday the matter was headed to court, and health lawyers lodged papers with the Makhanda high court before they were served on labour department lawyers, for a hearing possibly early next week.
The unprecedented legal dispute would pit Frere management, backed by provincial health director-general Thobile Mbengashe, against labour minister Thulas Nxesi and inspector Maxontana.
It is arguably the first time that labour safety provisions have been used to shut down a hospital in SA.
Frere has 20 major departments and a range of sub-specialities.
The hospital has a total of 893 beds and is regarded as a referral facility for the entire province.
The hospital’s output includes about 300 emergency after-hours surgeries, while some 32,620 outpatients attend the hospital every month.
None of these services will be able to continue, and none of the patients receive any medical treatment or medication should the hospital be shut.
The notice by Maxontana, on the standard form usually issued to private companies, states that conditions at the hospital “threaten, or are likely to threaten, the health and/or safety of persons”.
It prohibits Thomas from allowing the hospital to operate “without proper access control measures to prevent the spread of Covid-19, risk assessment and training of staff for Covid-19, and the medical surveillance for the workers of C1, C10, C11, B6 and casualty” wards.
It is understood that health officials regard the labour inspector’s decision in the middle of a pandemic as unreasonable. They are concerned about the vagueness of the notice.
DispatchLIVE has also seen a copy of a report submitted to the inspectors detailing Frere management’s response to concerns raised during a meeting on May 12.
However, the notice followed a series of meetings between Frere management and health sector unions representing hospital staff, along with labour department officials, amid ongoing staff concerns about the hospital’s internal protocols for managing the virus outbreak.
Nehawu regional secretary Zwelakhe Tywala confirmed participating in the meetings to discuss concerns about the steps the hospital had taken to curb the spread of the virus.
“We support it,” was his response late on Friday to the notice, adding that Frere had challenged the notice, and legal papers had been prepared by the health department’s lawyers.
“There was a series of meetings — the certificate [prohibition notice] was issued after the last meeting.
“There was a strike by workers and we invited the department of employment & labour. Frere was given specific directions on how to deal with Covid-19 and the department followed up in another meeting but nothing was done by Frere management to meet the requirements.
“On the third meeting, the department issued a notice saying Frere was not ready to implement these Covid-19 measures.”
He said Frere was “championing a mixing of confirmed Covid-19 and non-Covid patients”.
“Also, staff would move from one ward to another wearing the same clothing. There was no dedicated ward dealing specifically with Covid-19.
“The labour department notice clearly and simply says you must not expose employees unnecessarily to Covid-19.”