Private enforcement

Causes of action

What private causes of action may citizens or other private bodies bring to enforce a healthcare regulation or law?

There are three levels of accountability depending on the specific requirements laid out in law.

 

Civil liability

Civil liability may occur whenever damages and losses arise from infringements of civil law or of contractual provisions. State and other public entities (namely, individuals and entities of the public healthcare sector) may also be held liable under a specific extra-contractual civil liability.

 

Criminal liability

Health-related criminal liability exists if the crime is actually undertaken by an individual and if the conduct is classified as a crime. The following crimes are to be highlighted:

  • medical and surgical treatments in violation of current and common medical practices (article 150.º, No. 2 of the Portuguese Criminal Code (PCC));
  • medical and surgical treatments against the patient’s will (article 156.º of the PCC);
  • dissemination of disease and provision of medicinal substances disregarding the medical prescription (article 283.º of the PCC);
  • refusal of medical aid (article 284.º of the PCC); and
  • breach of secrecy (article 195.º of the PCC).

 

Disciplinary liability

Disciplinary liability mainly occurs whenever deontological law and ruling are breached. Depending on the sector (public or private) in which the healthcare provider commits the infringement, the law enforcement may be of a public or private nature.

Framework for claims

What is the framework for claims of clinical negligence against healthcare providers?

The framework may correspond to the violation of the good practices established for health professionals and healthcare institutions as well as of guidelines issued by public agencies, such as the General Health Directorate. Apart from the specific ruling arising from the above-mentioned practices and guidelines, the general standard is the bonus pater familia (ie, that every health professional shall act with the diligence and correctness that a ‘normal’ and typical health professional would act in that specific situation).

From a civil perspective, it is widely accepted by the Portuguese courts that the requirements for civil liability are the following:

  • action or relevant omission;
  • breach of law or of contractual provisions;
  • the occurrence of a damage;
  • guilty behaviour; and
  • causality between the damage and the defaulting conduct.

 

Courts are not reluctant to penalise public or quasi-public healthcare providers if the legal requirements are fully satisfied.

Seeking recourse

How and on what grounds may purchasers or users of pharmaceuticals or devices seek recourse for regulatory and legal infringements?

Users may submit complaints and report events and even submit suggestions to Infarmed on the following areas and subjects:

  • services rendered by entities regulated and supervised by Infarmed;
  • products regulated by Infarmed; and
  • services provided by Infarmed.

 

Besides the civil and criminal liability and respective grounds, product liability and adverse reactions may also serve as grounds.

Compensation

Are there any compensation schemes in place?

There are no specific compensation schemes. The compensation is determined on a case-by-case basis and is fixed in accordance with the court criteria and respective assessment of the facts, means of proof and also in accordance with the nature and extension of the damages and losses.

Class and collective actions

Are class actions or other collective claims available in cases related to drugs, devices and provision of care?

The popular action, governed by Law No. 83/95 of 31 August, as amended, is a collective claim that can be brought by those seeking compensation for offences against public health or quality of life. In accordance with specific legislation, this action may be of administrative (public) or civil nature.

Review

Are acts, omissions or decisions of public and private institutions active in the healthcare sphere subject to judicial or administrative review following a complaint from interested parties?

Public institutions are subject to administrative and judicial review. The statute of limitations for the interested parties to challenge the respective acts or omissions is dependent on the nature of the infraction. Remedies may consist of the revocation, suspension, amendment of an act or decision in the breadth of administrative offence or by judicial review. The enforcement of a specific conduct or the performance of a specific act and compensation of damages may also be granted by the judicial decision. In this regard, public entities may also be challenged for damages within the parameters of the extra-contractual civil liability regime pointed out above. Such claims are handled by administrative courts.

The challenging of private institutions may be of an administrative nature if the grounds of the complaint relate to infringements of regulatory duties, in which case the complaint may be enforced at the start before the competent regulatory authority and may be subsequently submitted to administrative courts. In the case of damages of a civil nature, challenging is subject to judicial civil review. The statute of limitations for the interested parties to challenge the acts or omissions of these private entities is also dependent on the nature of the infraction, and the remedies may be the same as the ones quoted for public entities.

Whistle-blowers

Are there any legal protections for whistle-blowers?

There is no general regime for whistle-blowers even though specific regimes are set for money laundering, terrorism and drugs traffic. However, whistle-blowers may be criminally and civilly liable for defamation, namely in the case of persons of high reputation.

Does the country have a reward mechanism for whistle-blowers?

There is no reward mechanism for whistle-blowers in Portugal.

Are mechanisms allowing whistle-blowers to report infringements required?

There is a specific mechanism for reporting corruption and fraud available on the website of the Central Bureau of Investigation and Prosecution of the Attorney General’s Office.

The reporting mechanism is accessed online and whistle-blowers should identify the following:

  • the acts of corruption or fraud;
  • the date on which such acts occurred; and
  • the identities of the suspects.

 

Whistle-blowers may also inform on the quantities at stake, individuals who may be relevant for ascertaining the facts and who may also submit documents to support such a complaint.

Whistle-blowers may choose to remain anonymous.

Law stated date

Correct on

Give the date on which the information above is accurate.

26 June 2020.