The Healthcare Law Review: Portugal
In Portugal, there is a fundamental right to health protection specifically set out in the Chapter dedicated to fundamental rights in the Constitution of the Portuguese Republic. The right to health protection must be guaranteed: (1) by means of a universal and general national health service, which, with particular regard to the economic and social conditions of the citizens who use it, will tend to be free of charge; and (2) by creating economic, social, cultural and environmental conditions that particularly guarantee the protection of children, the young and the elderly; systematically improving living and working conditions, and promoting physical fitness and sport at schools and among the general population; and developing the public's health and hygiene education and healthy living practices.2
Healthcare services in Portugal are provided through three coexisting and overlapping systems: (1) the National Health Service (SNS), (2) special health insurance schemes for certain professions (health subsystems) and (3) voluntary private health insurance.
The SNS was established in 1979 in the context of the enactment of the Constitution of the Portuguese Republic in 1976 and is managed by the Ministry of Health.
The Ministry of Health is divided into three sectors: (1) the direct administration; (2) the indirect administration; and (3) the public enterprise sector, comprising the Shared Services of the Ministry of Health (SPMS), local health units, hospital centres and public enterprise hospitals.3
The Ministry of Health is responsible for issuing the National Health Plan4 and the National Strategy for Quality in Health. Five regional health authorities (ARS) (which are public entities and part of the indirect administration of the state under the supervision of the Ministry of Health) are responsible for the implementation of the national health objectives set out in those documents and have financial responsibility for primary and hospital care.
Despite the universal coverage of the SNS, there are other forms of financing the provision of healthcare services, which are specific to particular categories of citizen. There are groups of citizens with specific sickness schemes, usually designated as 'health subsystems'. These systems, which constitute the second component of the healthcare system in Portugal, are formed of entities of a public or private nature that, by law or under contract, provide health benefits to a group of citizens or financially reimburse them for the corresponding charges. Membership of these subsystems is based on professional categories and covers beneficiaries who are still in work, retired workers and their family members. These subsystems are financed through the beneficiaries' contributions.
Until 2005, there were six health subsystems operating in the public sector that were integrated in that same year into the main subsystem, the Institute for Disease Protection and Disease Control (ADSE). The ADSE comes under the indirect administration of the Ministry of Health (and is also subject to financial control from the Ministry of Finance) and now covers the provision of healthcare services to all public servants and persons rendering services to public entities, under certain type of arrangements. At the end of 2016, the number of ADSE beneficiaries amounted to 1.22 million, including active staff, pensioners and family members, while it slightly decreased in 2018 to 1.2 million and in 2019 to 1.19 million.5
Private health subsystems consist of entities of a private nature that, under contract, provide healthcare to a group of citizens or contribute financially to the corresponding charges. Such a contract is compulsory, resulting from a compulsory intra-group solidarity mechanism (with a professional or business matrix). The largest private subsystems are ACS (the health subsystem for the employees of Grupo Altice) and SAMS (the health subsystem for banking and insurance employees).
Finally, the private insurance sector, the third component of the healthcare system in Portugal,6 which is based on voluntary individual affiliation, operates under a free-market regime and is subject to the general legislation of the insurance sector. Since the early 1990s, the number of beneficiaries of health insurance has increased at a rate of more than 10 per cent per year, and in 2015, almost 2.7 million Portuguese citizens had health insurance. There are some cases where people can benefit from triple coverage: from the SNS, from a health subsystem and also under private health insurance.7
Healthcare services are also provided, on a more limited scale, by non-profit private operators with a charitable background, known as Holy Houses of Mercy.8 Anyone can access the healthcare services provided by the Holy Houses of Mercy (hospitals, clinics of physical medicine and rehabilitation, etc.), as they have agreements with both the SNS and with health subsystems and insurers. In the case of agreements with the SNS, the Holy Houses of Mercy have agreements with the Ministry of Health for the provision of healthcare services, integrating them into the national healthcare network. In the case of subsystems (e.g. the ADSE) and insurers, the user will have to be a beneficiary of one of these subsystems and the Holy Houses of Mercy must have an agreement in place with them to allow these beneficiaries to access healthcare services. There are currently 22 hospitals, 120 nursing homes, and other healthcare activities managed by the Holy Houses of Mercy.9
The covid-19 pandemic exposed the need to reinforce investment in the country's SNS. In this context and following the investment trend seen in the 2020 state budget, in 2021 the Portuguese state budget included additional investment on: access to primary care by users and facilities; integrated continued care; mental healthcare and the promotion of the National Mental Health Plan; the hiring of health professionals; and continuation of the investment plan to improve the SNS. The latter aims to build new hospitals, in particular the new Alentejo Central Hospital and the Seixal Proximity Hospital, and invest in the refurbishment and equipping of primary healthcare buildings.10
The healthcare economy
In addition to what is stated in the Constitution of the Portuguese Republic regarding the right to health protection, the general policy guidelines regarding the healthcare sector in Portugal are set out in Basic Law No. 48/90 of 24 August, as amended (the Healthcare Basic Law).
In addition to a network of public hospitals and primary healthcare facilities covering the entire Portuguese territory, there is a broad range of private healthcare services offered in Portugal, including private clinics of varying dimensions and private hospitals. There are several private entities in Portugal, both for profit and non-profit, operating networks of multiple private hospitals and clinics.
ii The role of health insurance
As mentioned in Section I, there is no obligation for users of healthcare services to acquire healthcare insurance. This activity is governed by law and other instruments regulating insurance in Portugal. The insurance sector in Portugal is governed by the Authority for the Supervision of Insurance and Pension Funds.
iii Funding and payment for specific services
Pursuant to the Healthcare Basic Law, the SNS is financed primarily through transfers from the Portuguese state budget. Furthermore, in this regard, there are provisions of the Healthcare Basic Law, the Statutes of the SNS approved by Decree-Law No. 11/93 of 15 January, as amended, and Decree-Law No. 113/2011 of 29 November, as amended, that regulate access to the SNS services on the basis of moderating fees. Healthcare units of the SNS may also receive the following income:
- payment of healthcare services provided in particular rooms or other types or services not available for the majority of users;
- payment of healthcare services by third parties that have the legal or contractual responsibility to pay for healthcare such as healthcare subsystems or insurers;
- payment of healthcare services provided to non-beneficiaries of the SNS;
- donations; and
- moderating fees paid by users.
Moderating fees are charged to SNS users (with some exceptions applicable to certain categories of users as well as to certain types of healthcare services11) with a view to incentivising a rational use of SNS resources and the control of public expenditure. These fees are governed primarily by Decree-Law No. 113/2011 and by Ministerial Order No. 306-A/2011 of 20 December, as amended, setting a fixed fee for consultations (primary care and hospital outpatient visits), emergency visits, home visits, diagnostic testing and therapeutic procedures. Moderating fees are only due in ambulatory care.
Moderating fees will ideally be charged upon the provision of healthcare services, unless the user is unable to pay as a consequence of his or her health situation or a lack of financial means. Whenever the fees are not paid immediately, the user will be instructed to pay the relevant amount within 10 days. Non-payment of moderating fees is not grounds for refusing healthcare services.
The Portuguese government reimburses purchasers of prescription pharmaceutical products. The rules governing the reimbursement of prescription pharmaceutical products are set out in Decree-Law No. 97/2015 of 1 June 2015, as amended. The decision to reimburse purchasers of pharmaceutical products must be made taking into account technical and scientific criteria as well as criteria of economic rationality, among other factors. Additional benefits are given to certain categories of patients, notably, pensioners who do not meet certain income thresholds and patients who suffer from certain types of illnesses.
Owing to mismatches between supply and demand, waiting lists in the SNS for surgery or consultations for certain medical specialties are often long. The SNS's offering of dental services is also limited, although Ministerial Order No. 301/2009 of 24 March introduced the National Oral Health Promotion Programme,12 pursuant to which certain categories of patients are entitled to vouchers that are exchangeable for dentistry services. For these reasons there is strong demand for private-sector services in certain areas (e.g., dentistry or medical specialties).
Wellness services, alternative therapies and opticians are usually funded by individuals, with the possibility of co-funding by private insurers or health subsystems. Some types of beneficiaries (e.g., infants and adolescents, pregnant women, the elderly, and AIDS and HIV patients) are entitled to certain specific additional benefits. In the specific case of the elderly, this group of beneficiaries can access additional benefits, such as co-funding for glasses up to a specified limit (under the Solidarity Supplement for the Elderly13 or exemption from payment of moderating fees). Furthermore, the Holy Houses of Mercy – in the context of the National Network of Integrated Continuous Care14 – provide the elderly with a set of mechanisms to give them adequate care, such as residential structures, day centres, home support services and continuous care units.
Primary/family medicine, hospitals and social care
Primary care is currently organised in Portugal on a geographical basis. The Group of Healthcare Centres (ACES), introduced under Decree-Law No. 28/2008 of 22 February, as amended,15 was created as a decentralised service of the ARS (which has directive powers over it) as a new way to guarantee improved direct access to healthcare for Portuguese citizens, which was previously assured by the healthcare centres regime, enacted by Decree-Law No. 60/2003 of 1 April (no longer in force). The ACES is made up of healthcare providers with administrative autonomy, which agglomerate one or more healthcare centres. They are responsible for providing primary healthcare to the population of a specific geographic area. Although the ACES is intended to be the primary source of healthcare services, hospitals continue to be citizens' first choice.
It is also possible to receive basic primary healthcare through the local healthcare systems (SLSs), introduced by Decree-Law No. 156/99 of 10 May, which are made up of healthcare centres, hospitals and any other healthcare service providers or institutions, whether public or private in nature, that operate within a certain local region. The SLSs are created by means of an administrative order from the Minister of Health, following a proposal from the ARS and consultation with the local authorities.
Despite the international financial crisis in 2007, which limited public expenditure in the healthcare system, the private sector managed to find a way to keep its market share within the healthcare sector. One of the most important reforms within the hospital sector in Portugal in recent years was the development of public–private partnerships, enacted by Decree-Law No. 111/2012 of 23 May, as amended. Although the investment and operation of these healthcare units is private, they are nevertheless integrated into the SNS, which means that all SNS users have the same rights and duties as in any other public hospital or healthcare unit. Currently, there are three hospitals under this regime.16
The licensing of healthcare providers and professionals
As mentioned in Section I, the Ministry of Health is the central government entity responsible, among other things, for the execution and evaluation of the national health policy, for regulating and overseeing healthcare services and activities developed by the private sector and for the regulation, evaluation and inspection of the SNS.
Meanwhile, the ARS are the bodies responsible for supervising healthcare providers from the public, private or social sectors, with the exception of the pharmacy sector.
ii Institutional healthcare providers
The ARS, apart from being the bodies responsible for supervising healthcare activities, are also responsible for the entire licensing process of institutional healthcare providers. In accordance with Decree-Law No. 127/2014 of 22 August, as amended, the opening and functioning of a healthcare unit depends on the verification of the technical operating requirements applicable to each type of healthcare provider.
For an entity to operate as a healthcare provider it must obtain a licence for that purpose, except in the specific cases set out in the law (in which case, a mere declaration of conformity is sufficient for the healthcare unit to function).
Without prejudice to criminal, disciplinary and civil liability and any other administrative sanctions that may apply, operating a healthcare unit without a licence is an administrative offence punishable with fines ranging from €4,000 to €44,891.81. In addition to this, and depending on the seriousness of the offence, additional sanctions may be imposed, such as the suspension of the activity of the healthcare unit subject to licensing for a maximum period of two years. If the licensing procedure is not settled, the healthcare unit may be definitively closed.
iii Healthcare professionals
The practice of medical doctors in Portugal is regulated by the Statutes of the Portuguese Medical Association, approved by Decree-Law No. 282/77 of 5 July, as amended.
The Portuguese Medical Association is a public professional association representing medical doctors in Portugal. To practise as a doctor, it is necessary to be registered with the Portuguese Medical Association. Registration can only be rejected on the basis of (1) a lack of the required academic qualifications, (2) prohibition from practising the medical profession as ordered by a court of law (if the decision can no longer be appealed), and (3) failure to pass the medical communication test that foreign doctors must take for the assessment of their Portuguese language skills. The applicant is entitled to appeal the decision of the Portuguese Medical Association to a superior council or to the Portuguese administrative courts.
It is possible, under Decree-Law No. 66/2018 of 1 January, to obtain automatic recognition of foreign academic degrees that are of the same level and nature as, and have objectives that are identical to, the degrees of licenciado, mestre and doutor awarded by Portuguese higher-education institutions. Under this legal framework, only public higher-education institutions are entitled to recognise foreign degrees as the corresponding above-mentioned degrees. Following this recognition, international graduates can request registration with the Portuguese Medical Association.
The practice of medicine without registration with the Portuguese Medical Association constitutes the crime of usurpation of functions under the Portuguese Penal Code, punishable with a prison sentence of up to two years or a fine of up to 240 days.17
Dentistry, nursing and pharmacy are all also regulated professions that require prior inscription with a public association. Inscription in each of the respective public associations governing the dentistry, nursing and pharmacy professions is governed by principles similar to those for the Portuguese Medical Association, notably in terms of academic qualifications and the requirement to undertake adequate training in each of the aforementioned professions.
Law No. 67/2007 of 31 December sets out the rules applicable to the state and other public entities' extra-contractual civil liability. Under this legal framework, the state and other legal entities governed by public law are exclusively liable for damages resulting from unlawful actions or omissions committed negligently by members of their bodies, officials or agents, in the performance of their administrative duties and resulting form that performance. This means that if the individuals working for the healthcare institution act with the expected level of diligence and in accordance with the technical rules of medical science, there will be no liability, regardless of the final outcome of the treatment (i.e., the obligation concerns the means and not the outcome).
The state and other legal persons governed by public law will also be liable in cases where the damage has not resulted from the conduct of a particular individual or whenever it is not possible to demonstrate liability for any act or omission, but must be attributed to the abnormal provision of the service. The law further clarifies what is considered an abnormal provision of the service.
Individuals will only be liable under this legal framework when their acts or omissions are caused by a fault on their part or when their level of diligence and care is significantly lower than what is expected for the position they hold. Nevertheless, the public healthcare provider remains jointly and severally liable.
Where private healthcare providers are concerned, and in the absence of specific legislation, the rules of contractual liability set out in the Portuguese Civil Code will apply. Despite this, the rules of tort liability may also apply whenever it is not possible to resort to the rules of contractual liability in cases where it is not possible to demonstrate the existence of a contractual relationship between the patient and the doctor. Similarly to the public healthcare service providers, the obligations of private healthcare units (and their providers) concern the means and not the outcome.
ii Notable cases
Lisbon Court of Appeal (Case 1573/10.5TJLSB)
This case dates back to 2010 and relates to a civil action filed by a private hospital against the heirs of a patient who died. The hospital sought the payment of health expenses arising out of the patient's treatment while she was hospitalised. The defendants argued that they were not responsible for the payment of the fees, claiming that instead the hospital should pay compensation for damages arising from the patient's death, which happened as a result of a misdiagnosis.
The court considered this to be a situation of defective performance, and the defendants had to prove that there was an objective divergence between the acts carried out by the hospital and those that were deemed adequate for a certain result to be produced (in this case, to avoid the death of the patient). The court ruled that the hospital had violated the general duties of care and that the misdiagnosis was a direct cause of the patient's death.
The novelty of this decision lies in the nature of the damages awarded to the defendants; there was no evidence that, even if the patient had been correctly diagnosed, the chances of survival would have been different. However, the defective performance of the hospital's duties (the court considered that the hospital had the contractual obligation to have acted differently, to have performed certain tests that would have allowed for a correct diagnosis and adequate treatment) removed any possibility of the patient surviving. The theory of the 'loss of opportunity' refers to acts or omissions that have led to the loss of the opportunity of obtaining a benefit or avoiding an injury. It was held that there had been a causal link between the hospital's conduct and the damage caused to the patient and, therefore, the hospital was liable for the damage caused to the patient and the heirs.
The court also decided that the expenses that the hospital claimed from the heirs were only incurred in an attempt to remedy the patient's condition, which was itself caused by the previous omissions and defective performance and, therefore, were not to be paid.
Ownership of healthcare businesses
As mentioned in Section IV.ii, the opening and functioning of a healthcare unit depends on the verification of the technical operating requirements applicable to each type of healthcare provider. In addition to the technical operating requirements, the healthcare providers must also comply with hygiene, safety and public health requirements and their professionals must abide by the applicable ethical rules. Also, healthcare units must have an insurance policy in place covering all the inherent risks of the activity and the activity of its professionals.
There are no particular restrictions regarding the nationality of healthcare business owners.
Where competition issues are concerned, in the absence of specific rules applicable to the healthcare sector, the general rules of the Portuguese Competition Law (enacted by Law No. 19/2012 of 8 May, as amended) will apply.
Commissioning and procurement
The procurement for the provision of healthcare services is carried out, at a national and centralised level, by the SPMS, a public entity, created in 2010 to operate under the Ministry of Health and Finance.18 The rules applicable to the formation, as well as to the substantive regime, of administrative contracts in the context of the acquisition of products and services in the healthcare sector are set out in Decree-Law No. 18/2008 of 29 January, as amended, which introduced the Public Contracts Code. Other rules also apply, such as the Administrative Procedure Code and the Procedure Code of the Administrative Courts.
The process related to public purchases in the health sector is carried out through a single electronic contracting platform, centrally managed by the SPMS.19 The SPMS publishes a Public Health Supply Catalogue on the platform, which provides, among other things, updated information on existing goods and services under public procurement contracts and allows for the online consultation of the ongoing public tenders, as well as the online submission of supply proposals.
There are four main types of procurement procedures and two possible award criteria (the most economically advantageous tender and the lowest price). As a general rule, the choice of procedure is determined by the value of the contract (i.e., by the maximum value of the economic benefit, which, depending on the procedure adopted, can be obtained by the contractor). In some cases, the procedure to be followed is determined by the verification of specific circumstances provided by law.20 It is possible to challenge the procurement decisions either at an administrative or a judicial level.
As a final note, it is worth pointing out that on 16 January 2017, the Minister of Health issued Administrative Order No. 851-A/2017 with recommendations aimed at preventing the violation of the principles of transparency, competition and the pursuit of the public interest in the area of public procurement.
Marketing and promotion of services
The promotion and advertising of healthcare services and businesses was not formally regulated until 2015 with the enactment of Decree-Law No. 238/2015 of 14 October,21 which established the legal regime for health advertising practices and the general principles they must follow, and set out the practices considered to be misleading in this regard. Previously, in 2014, the ERS issued a recommendation22 and an alert23 on the advertising practices of healthcare providers, aimed at ensuring that any and all advertising messages referring to health services – regardless of format, form or medium of disclosure – should abide by the principles of lawfulness, truth, transparency and completeness.
With the exception of matters governed by special legislation, such as advertising for medicinal products and health products and state institutional advertising, this Decree-Law covers all advertising practices relating to conventional and non-conventional methods, complementary means of diagnosis and therapy, and any treatments or therapies, namely those involving the use of cells.
This legal framework applies to any public or private entity that provides healthcare services or advertises products, regardless of the forms and means used, related to the prevention and treatment of diseases, including the provision of diagnoses and any treatments or therapies.
All health advertising practices that, for any reason, induce or are likely to mislead the user as to whether to acquire a product or service, are forbidden by law. These advertising practices constitute an administrative offence punishable by fines ranging from €1,000 to €44,891.81 for legal persons and from €250 to €3,740.98 for natural persons. Additional sanctions, such as temporary prohibition (for up to two years) from practising a professional or advertising activity and the loss of rights or benefits granted by regulatory authorities or public services (for up to two years), may also be imposed depending on the seriousness of the offence and its potential impact.
The rules of the Portuguese Advertising Code, approved by Decree-Law No. 330/90 of 23 October are applicable, on a subsidiary basis, to these advertising practices.
In the wake of the SARS-CoV-2 pandemic, it was necessary to implement certain legal measures in Portugal, which, besides restricting the rights and freedoms of its citizens by the approval of successive states of emergency and calamity, impacted the healthcare sector in various ways.
These measures, independently of a national or supranational nature, concerned different sectors, areas of activity and matters. In this context, the pandemic has also fostered the legal debate of several issues, such as vaccination, which cannot be imposed in Portugal, the management of healthcare resources and the relationship between private and public units and even data protection rights of citizens in terms of their health data.
From the very broad array of legal measures that were adopted, we highlight that there were various amendments and innovations introduced that impacted healthcare activities in Portugal, especially regarding aspects such as (1) labour and (2) tax matters, as well as (3) the requirements concerning marketing of medical devices (MD) and personal protective equipment (PPE).
With respect to labour matters, Decree-Law No. 10-A/2020 of 13 March determined that body temperature measurements may be taken from employees for access to and presence in the workplace and Resolution of the Council of Ministers No. 74-A/2021 of 9 June, determined that certain people, namely employees that are active in workplaces with 150 or more people, may be subject to a SARS-CoV-2 test, if determined by the head of service or of the establishment of certain locations.
Regarding the requirements concerning marketing of MDs and PPEs, following the Commission Recommendation (EU) 2020/403, Decree-Law No.14-E/2020 of 13 April has established a transitory regime for (1) the manufacture, importation, placing and availability in the national market of MDs and PPEs for the purpose of preventing coronavirus transmission, (2) the marketing of masks for social use, and (3) the national market of rapid antigen tests (TRAg), as well as MD for in vitro self-diagnosis. Furthermore, Decree-Law No. 14-E/2020 of 13 April permitted the marketing of TRAg in supermarkets and hypermarkets.
Concerning tax-related matters, Law No. 13/2020 of 7 May established an exemption from value added tax (VAT) for intra-Community supplies and acquisitions of goods needed to combat the outbreak of covid-19, in order to encourage the movement and purchase of these products, avoiding the obstacles that a high VAT rate in a health emergency could pose.
Finally, the pandemic has proved to be an opportunity for the healthcare sector in Portugal as explained in greater detail below.
Future outlook and new opportunities
Following the launch of the new planning cycle 2021–2030 on 9 October 2019 by the Directorate-General for Health, work began on the preparation of the new National Health Plan 2021–2030. However, it was temporarily suspended in March 2020 because of the covid-19 pandemic and has only recently been resumed. Therefore, the Directorate-General for Health issued Administrative Order No. 4834/2021 extending the application of the National Health Plan (2012–2016) (the Plan) until 2021, which is a basic element in defining health policies in Portugal and provides the main strategies for public health action. The Plan's main goals are the decrease of premature mortality (i.e., before the age of 70) by 20 per cent, the increase of healthy life expectancy at age 65 by 30 per cent, the reduction of smoking in the population over 15 years old and the elimination of exposure to environmental smoke, as well as controlling the incidence and prevalence of obesity in young people and schoolchildren (with no quantitative objective attached).24
Given the context above, the covid-19 pandemic is indeed not only the biggest challenge for national health systems globally, but also the main driver for their improvement. This is to say that the current battle against the global pandemic has laid bare the existent challenges that were already being felt in healthcare systems and as a consequence of this, the Portuguese government and the European Union are promoting investment in the healthcare sector at a national and European level, respectively.
As a result, Portugal is not only increasing its state budget allocation to the SNS, but will also benefit from the EU Recovery and Resilience Facility (RRF) over the period 2021–2026. The RRF will provide up to €672.5 billion to support investments and reforms across the EU. The aim of the RRF is, among other objectives, to mitigate the economic and social impact of the coronavirus pandemic.25
Following the recent developments on the RRF, the European Commission has adopted a positive assessment of Portugal's recovery and resilience plan, which is a fundamental step towards the European Union disbursing €13.9 billion in grants and €2.7 billion in loans. This financing will support the implementation of the crucial investment and reform measures outlined in Portugal's recovery and resilience plan that include, among other measures, reforms and investment of the healthcare sector, namely the strengthening of the response capacity of primary healthcare, mental health and long-term care services, combined with steps to enhance efficiency and communication between different elements of the SNS.26
Following this, as the Commission has adopted a proposal for a Council implementing decision to provide €13.9 billion in grants and €2.7 billion in loans to Portugal under the RRF, the Council will now have, as a rule, four weeks to adopt the Commission's proposal. The Council's approval of the plan would allow for the disbursement of €2.2 billion to Portugal in pre-financing.
Finally, the Commission will authorise further disbursements based on the satisfactory fulfilment of the milestones and targets outlined in the Council implementing decision, reflecting progress on the implementation of the investments and reforms.27
Apart from the reforms that are emerging due to the covid-19 pandemic, for the year 2020, the government has established priority health programmes in the following areas:28 chronic diseases; healthy nutrition; promotion of physical activity; prevention of diabetes; brain and cardiovascular diseases; oncological diseases; respiratory diseases; transmissible diseases; control of antimicrobial resistance; and mental health.29
Finally, the Portuguese government approved the National Strategy for the Ecosystem of Information 2020 (ENESIS 2020),30 which is aimed at improving access and information sharing by simplifying and dematerialising processes and documents, such as electronic prescriptions and the dispensing of drugs, processes associated with death and sick leave, the availability of data and services through the Health Data Platform and related portals and also providing public access to open data on the SNS website and at http://www.dados.gov.pt. The coordination and supervision of ENESIS 2020 are the responsibility of SPMS, under the guidance of the relevant ministry, ensuring its operationalisation and promotion within the scope of the SNS.
Portugal has been increasingly investing in its healthcare system as a result of national and European policies. This trend has naturally been reinforced by the covid-19 pandemic, which forced states to adapt to a global public health crisis, rethink the organisation of healthcare and promote the adoption of measures to improve existing health systems.
In this regard, a recent study published in the Portuguese Journal of Public Health31 argued that in Portugal the future vision for healthcare delivery cannot exclusively focus on the economic and financial sustainability of the SNS in the short term, but rather it must address the issues identified by patients, healthcare providers and health services in general. The study indicates a set of four essential problems that should be dealt with by public health policies in the next decade. These essential problems mainly relate to patients' difficulties in accessing the SNS; healthcare professionals' great dissatisfaction with the organisational climate of the SNS; healthcare administrators' critique regarding the loss of status of health planning in the Ministry of Health; and the need to foster integrated health promotion programmes to increase life expectancy, the average of which is lower in Portugal than in other European countries. A change of focus based on these recommendations would certainly contribute to a more effective and efficient integrated approach to meet Portugal's healthcare needs in the coming years.
According to the OECD's 2019 The State of Health in the EU (Portugal: Country Health Profile 2019) report, Portugal's main challenges for the future essentially relate to the health system's financial and fiscal sustainability.32 Despite this, the OECD also pointed out that Portugal has substantially increased its life expectancy over the last decade, has a strong primary care system which manages to keep patients out of hospital when appropriate, and has a health system that is committed to public participation and patient empowerment.
Finally, Portugal has a tremendous opportunity to make use of the European Union Recovery and Resilience Facility over the period 2021–2026 to enhance its health services and to invest in policies to improve the national health system, the conditions of its professionals and the access of its citizens to healthcare.
1 Francisco Brito e Abreu is a partner and Joana Mota is a managing associate at Uría Menéndez – Proença de Carvalho. The authors would like to acknowledge the contribution of their colleagues José Maria Rodrigues (senior associate), and Ricardo Pintão (junior associate) in the preparation of this review.
2 Article 64(2) of the Constitution of the Portuguese Republic.
3 The organisation chart of the Ministry of Health: http://www.sns.gov.pt/institucional/entidades-de-saude/.
4 The official document for the National Health Plan applicable in 2021 as per Administrative Order No. 4838/2021 of the Directorate-General for Health: http://pns.dgs.pt/files/2015/06/Plano-Nacional-de-Saude-Revisao-e-Extensao-a-2020.pdf.pdf.
6 Evaluation of the contracting model of healthcare providers by subsystems and health insurance issued by the Healthcare Regulatory Authority (ERS): http://www.ers.pt/uploads/writer_file/document/70/Subsistemas_Seguros.pdf.
7 Health Systems in Transition – Portuguese Health system review 2017, Jorge de Almeida Simões, Gonçalo Figueiredo Augusto, Inês Fronteira, Cristina Hernandez-Quevedo: http://www.euro.who.int/__data/assets/pdf_file/0007/337471/HiT-Portugal.pdf.
8 'Holy Houses of Mercy are brotherhoods of laymen inspired by the Catholic faith, whose objective is to help victims of any form of misery, and whose work includes feeding the hungry, curing the sick, and other types of social work.' The role of private non-profit healthcare organisations in NHS Systems: implications for the Portuguese hospital devolution program, 2016, Álvaro S Almeida: http://wps.fep.up.pt/wps/wp577.pdf.
11 More specifically, and with the objective of promoting the correct orientation of patients, the last amendments to Decree-Law No. 113/2011, through Decree Law No. 96/2020, of 4 November, which provides that moderating fees should not be charged for medical consultations and all complementary diagnostic and therapeutic exams prescribed within the scope of the primary healthcare network.
12 Additional information about the Programme can be found here: https://www.saudeoral.min-saude.pt/pnpso/public/index.jsp.
13 Additional information on the beneficiaries entitled to this social benefit can be found here:https://www.sns.gov.pt/sns-saude-mais/comparticipacoes/.
14 This national network was instituted by Decree-Law No. 101/2006 of 6 June, as amended, and is operated by the SNS and the Social Security System, consisting of a set of institutions, of a public and private nature, that provide continuous care and social support for people in situations of dependency, both in their homes and in inpatient units. Additional information can be found here: https://www.sns.gov.pt/sns-saude-mais/cuidados-continuados/.
15 Following its last amendment, through Decree-Law No. 23/2019 of 30 January, the maintenance, conservation and equipment of primary healthcare facilities have been transferred to the municipalities where they are located.
16 Hospital Beatriz Ângelo, Hospital Cascais Dr. Josá Almeida and Hospital Vila Franca de Xira. Additional information on the contracting model of the PPP can be found at: http://www.acss.min-saude.pt/2016/10/12/parcerias-publico-privadas/.
17 Fines may be imposed in daily units, with the court determining the number of units on the basis of the personal and financial circumstances of the defendant.
18 It was formally incorporated under Decree-Law No. 19/2010 of 22 March. Further information about the SPMS can be found at: https://www.sns.gov.pt/entidades-de-saude/servicos-partilhados-do-ministerio-da-saude/.
19 In accordance with Ruling 227/2014, of 6 November, as amended. The electronic contracting platform is available at: https://community.vortal.biz/PRODSTS/Users/Login/Index?SkinName=SPMS.
20 Further information on the procurement process can be found at: http://spms.min-saude.pt/wp-content/uploads/2016/01/Manual-de-Contratação-Pública.pdf.
21 And further regulated by Regulation No. 1058/2016 of 24 November. Additional information can be found at: https://www.ers.pt/uploads/writer_file/document/2100/Informa__o_sobre_o_teor_do_Regulamento_da_ERS_n.__1058-2016.pdf.
24 The full version of the Plan may be found here: http://1nj5ms2lli5hdggbe3mm7ms5.wpengine.netdna-cdn.com/files/2015/06/Plano-Nacional-de-Saude-Revisao-e-Extensao-a-2020.pdf.pdf.
26 Available at: https://ec.europa.eu/info/system/files/com_321_1_en.pdf.
29 Health Systems in Transition – Portuguese Health system review 2017, Jorge de Almeida Simões, Gonçalo Figueiredo Augusto, Inês Fronteira, Cristina Hernandez-Quevedo.
32 The full report can be found here: https://www.oecd-ilibrary.org/docserver/85ed94fc-en.pdf?expires=1593116705&id=id&accname=guest&checksum=86BC6AB2356E79D69B4F97623D8C42D8.