Constitutional principles guarantee the rights to health protection and protection of personal data in Portugal. A national health system provides healthcare to the population, while a national commission is charged with the power to supervise and monitor compliance with the laws and regulations on personal data protection.
A 1990 law provides the general principles and policies that guide the health sector in the country, the sanitary protection of its borders, and the powers granted to the Minister of Health to manage serious public health emergencies.
Working under the authority of the Ministry of Health are the General Board of Health, which is in charge, inter alia, of regulating, guiding and coordinating the activities of health promotion and disease prevention in the country, including epidemiologic surveillance at national level; and the National Institute of Emergency Medicine, which is responsible for, among other things, collaborating in national civil emergency planning and the development and implementation of specific plans regarding emergencies or disasters.
A system of public health surveillance monitors the health status of the population to determine the risk of transmission of diseases, and a national council performs advisory functions in prevention and control of transmissible diseases.
Additional laws compose the legal framework available to the government to manage public health crises, such as the government’s ability to issue compulsory licenses for a patent for public interest reasons; to impose criminal sanctions on persons who spread contagious diseases; and, the adoption, in 2008, of the International Health Regulations.
To respond to a possible Ebola virus outbreak, Portugal is implementing contingency plans.
I. Constitutional Principle – Health
According to the Portuguese Constitution, everyone has the right to health protection and the duty to defend and promote health. The Constitution states that the right to health protection shall be fulfilled
- (a) through a universal national health service that, taking into account the economic and social conditions of citizens, will generally be free of charge; [and]
- (b) by creating economic, social, cultural and environmental conditions that will particularly protect childhood, youth and old age; by systematically improving the conditions of life and work and promoting physical fitness and sport at school and among the people; and by developing the people’s sanitary education and practices of healthy living.
II. National Health System
A National Health System (Sistema Nacional de Saúde, SNS) was created in 1979 by Law No. 56 of September 15, 1979, through which the government guarantees the right under the Constitution to health protection. The SNS is composed of the organs and services listed in Law No. 56. Its purpose is to provide comprehensive health care to the entire population. The SNS involves all integrated health care, including health promotion, public health surveillance, disease prevention, diagnosis and treatment of patients, and patients’ medical and social rehabilitation.
A. Basis of the Health Sector
On August 24, 1990, Law No. 48, the Basic Health Law, was enacted to establish the basis and structure of the health sector in Portugal. Law No. 48 provides the general principles and policies that must guide the country in this area. Failure to comply with the Basic Health Law entails criminal, civil and disciplinary liability.
The Portuguese government promotes the sanitary protection of its borders, in compliance with general rules issued by the competent bodies. The appropriate bodies are charged with studying, proposing, implementing and enforcing necessary measures to prevent the import or export of diseases subject to international health regulations; responding to threats of the spread of transmissible diseases; and promoting all necessary sanitary actions required by the international community.
The organization of the health system is based on the division of the national territory into health regions. The regions can be further divided into sub-regions, according to the needs of the population and the operability of the system.
The health authorities are located at national, regional and council levels to ensure timely and discretionary state intervention in situations of serious risk to public health, and are hierarchically subordinate to the Ministry of Health, through the appropriate general-director. The health authorities are in charge, among other things, of exercising sanitary border surveillance; and requesting services, facilities and the assistance of health professionals in cases of severe epidemics and other similar situations.
In the event of a catastrophe or other serious public health emergency, the Minister of Health is in charge of taking exceptional and indispensable measures, and must coordinate the activities of the central services of the Ministry with the SNS’s bodies and the various health authorities. If necessary, the government may request the services of professionals and healthcare facilities of the private sector in cases where such assistance is absolutely indispensable.
All Portuguese citizens are beneficiaries of the SNS. All nationals of Member States of the European Community may receive services of the SNS as well, in accordance with the European Community rules. Foreigners residing in Portugal may receive benefits on a reciprocal basis; stateless persons residing in the country also receive benefits.
Decree-Law No. 11 of January 15, 1993 approved the SNS Statute, which defines, among other things, the ambit of its application; its nature and objective; and the organization and functioning of the SNS. It also provides for the cooperation of the SNS with other entities.
B. Ministry of Health
The Ministry of Health is the government department responsible for defining and guiding the national health policy, ensuring a sustainable use of resources, and evaluating results. The Ministry of Health is responsible for regulating the SNS. Article 7(2) of Decree-Law No. 124 of December 29, 2011 further provides that all services and public health care providers, particularly groups of health care centers, hospitals(regardless of designation), and local health care units are to be integrated into the SNS.
1. General Board of Health
The General Board of Health (Direção-Geral da Saúde, DGS) is responsible for the direct administration of government within the Ministry of Health. The DGS’s mission is to regulate, guide and coordinate the activities of health promotion and disease prevention; define the technical conditions for the provision of adequate health care; plan and program the national policy for quality in the health system, as well as ensure the development and implementation of the National Health Plan (Plano Nacional de Saúde, PNS); and coordinate the international relations of the Ministry of Health.
The responsibilities of the DGS include issuing rules and guidelines, developing and promoting programs on public health and improving the delivery of care in relevant areas of health; and coordinating and ensuring epidemiologic surveillance at the national level and Portugal’s contribution at the international level.
2. National Institute of Emergency Medicine
The National Institute of Emergency Medicine (Instituto Nacional de Emergência Médica, INEM) is under the supervision and control of the Ministry of Health and is responsible, along with other institutions and organisms, for the indirect administration of the government.
The INEM’s mission is to define, organize, coordinate, participate in and evaluate the activities and operation of the Integrated System of Emergency Medicine (Sistema Integrado de Emergência Médica) in order to ensure victims of accidents or sudden illnesses receive prompt and proper health care.
The INEM’s responsibilities include, inter alia, collaborating in national civil emergency planning, including developing and implementing disaster relief plans; participating in the national emergency telecommunications network; and developing national and international actions of bilateral or multilateral cooperation.
C. System of Public Health Surveillance
Law No. 81 of August 21, 2009 created a System of Public Health Surveillance (Sistema de Vigilância em Saúde Pública, SVSP); a national network to collect information from epidemiologic surveillance; and the National Council of Public Health.
1. System of Public Health Surveillance
The SVSP consists of entities in the public, private and social sectors coordinating public health activities according to their respective statutory duties that prevent, alert, control and respond to transmissible diseases and other risks to public health, to ensure the right of citizens to the defense and protection of health.
Law No. 81 applies to all entities of the public, private and social sectors that collect, analyze, interpret, and disseminate health data, or perform epidemiologic studies relating to transmissible diseases and other public health risks.
All measures for preventing and containing the spread of transmissible diseases and other risks to public health by public bodies under Law No. 81, including conducting epidemiologic investigations pursued by health authorities and analysis of their risk factors, are subject to the personal data protection requirements discussed below.
The purpose of the SVSP is to monitor the health status of populations across time, evaluate the risk of transmission of any disease, and prevent the entry or spread of disease on Portuguese territory.
2. National Network
The national network includes public health services, laboratories, and other health authorities and bodies in the public, private and social sectors that contribute to a National System of Information of Epidemiologic Surveillance (Sistema Nacional de Informação de Vigilância Epidemiológica, SINAVE).
3. National Council of Public Health
The National Council of Public Health (Conselho Nacional de Saúde Pública, CNSP) performs advisory functions in the area of prevention and control of transmissible diseases and other risks to public health and, in particular, analysis and evaluation of serious conditions, including large-scale disease outbreaks and pandemics. It is responsible for proposing declarations of states of emergency caused by public calamities.
III. Compulsory Patent Licensing
According to the Portuguese Code of Industrial Property, compulsory licenses allowing the use of patented technologies may be granted for reasons of public interest. Such reasons include when increasing or improving the exploitation of the patented technology is of paramount importance for public health or national defense.
IV. Right to Privacy
A. Constitutional Principle
The Constitution provides that the law must establish effective guarantees against the acquisition and abusive use, or use that is contrary to human dignity, of information concerning individuals and families. Also, the protection of personal data used in connection with information technology is a fundamental right guaranteed by the Constitution.
B. Personal Data Protection
1. Law No. 67 of October 26, 1998
Law No. 67 requires that the processing of personal data be done transparently and with strict respect for subjects’ private lives, as well as for fundamental rights, freedoms, and guarantees.
Law No. 67 defines “personal data” (dados pessoais) as information of any type, irrespective of the type of media involved, relating to an identified or identifiable natural person.
The “processing of personal data” (tratamento de dados pessoais) is defined broadly as any operation or set of operations performed upon personal data.
The processing of various specified types of personal data, including data concerning a person’s health or sex life or genetic data, is prohibited under article 7(1) of Law No. 67.
Article 7(2) of the Law determines that the processing of the data mentioned in article 7(1) is allowed if permission is provided by law or authorized, in specific situations, by the National Commission of Data Protection (Comissão Nacional de Protecção de Dados, CNPD).
The processing of data relating to a person’s health and sex life, including genetic data, is permitted if it is necessary for the purposes of preventive medicine, medical diagnosis, provision of care or treatment, or management of health-care services, provided that those data are processed by a health professional bound by professional secrecy, the CNPD is notified, and suitable safeguards are provided.
2. Law No. 41 of August 18, 2004
Law No. 41 of August 18, 2004, applies to the processing of personal data in the context of networks and electronic communication services available to the public, specifying and supplementing the provisions of Law No. 67.
3. Criminal and Administrative Sanctions
Violations of the privacy provisions discussed above may result in fines and/or imprisonment. For example, some crimes are punishable by up to two years in prison and the payment of a fine, including non-compliance with obligations relating to data protection, unauthorized access to personal data, falsification or destruction of personal data, and breach of secrecy.
4. Data Protection Agency
The National Commission of Data Protection (Comissão Nacional de Protecção de Dados – CNPD) is the agency is charge of controlling and overseeing the enforcement of laws and regulations on the protection of personal data.
C. Personal Health Information
1. Law No. 12 of January 26, 2005
The concepts of health information and genetic information, the flow of information and the intervention on the human genome in the health system, and the rules for the collection and preservation of biological products for the purpose of genetic testing or research are defined by Law No. 12 of January 26, 2005.
For the purposes of Law No. 12, health information includes all kinds of information directly or indirectly related to the health, present or future, of a person, whether alive or deceased, and the person’s clinical and family history. All such health information is owned by the person. The units of the health system are the custodians of this information, which cannot be used for purposes other than the provision of care, health research, or other purposes specifically allowed by law.
2. Decree-Law No. 131 of August 29, 2014
Law No. 12 is regulated by Decree-Law No. 131 of August 29, 2014, regarding the protection and confidentiality of genetic information, the basis of human genetic data for the purpose of providing healthcare and health research, the conditions of supply and offer of genetic testing and the conditions under which consultations on medical genetics are assured. The release of genetic information related to the health of a person to third parties is prohibited, except as provided in Law No. 67 of 26 October, 1998. Articles 31 to 34 of Decree-Law No. 131 establish the offenses (contra-ordenações) that are punishable by a fine and the respective amount of such fines.
3. Law No. 5 of January 23, 2012
Law No. 5 of January 23, 2012 regulates the requirements for processing personal data for the establishment of nationwide files containing health data using information technology resources, including in the context of the SNS. Law No. 5 applies to all public healthcare facilities, to acts performed in private or social establishments that involve charges to the SNS, and to persons who deal with health data of others in the course of their activities.
The personal data and the processing of personal data encompassed by Law No. 5 are subject to authorization of the CNPD, under the terms of Law No. 67 of 26 October, 1998. Everything else that is not expressly regulated by Law No. 5 is applicable the regime provided by Law No. 67 of 26 October, 1998.
4. Portuguese Medical Code of Ethics
Under the Medical Code of Ethics, medical confidentiality must be observed in all circumstances as a result of the inalienable right of all patients to such confidentiality. The confidentiality includes all facts that have come to the attention of a physician in the exercise of his or her profession, and especially comprises:
- a) The facts disclosed by the person directly, by others at the person’s request or by a third party who has contacted with the person during care, or because of it;
- b) Circumstances perceived by the physician, whether or not originating from clinical observation of the patient or others;
- c) The facts resulting from knowledge of supplementary diagnostics and therapeutics related to the patient;
- d) The facts reported by another physician or health professional, bound by confidentiality.
The obligation of medical confidentiality exists whether the requested service has been rendered or not and whether paid or unpaid. The obligation to such confidentiality remains after the patient's death. A physician is excused from medical confidentiality in certain situations, such as cases involving diseases that require mandatory notification.
V. Criminal Sanctions
The Portuguese Penal Code punishes with two years in prison and a fine whoever spreads disease that is harmful to plants or animals. If the spread is caused by negligence, the person is punished by up to six months in prison and a fine. In addition, whoever spreads contagious diseases is punished with one to eight years in prison. If the spread is caused by negligence, the person is punished with three years in prison or a fine.
VI. International Health Regulations
Portugal is a member of the World Health Organization (WHO) and follows the International Health Regulations (IHR) adopted by the WHO in 1969 and later amended in 1973 and 1981.
In 1995, the 48th World Health Assembly called for a substantial revision of the Regulations adopted in 1969. After extensive work, on May 23, 2005, IHR (2005) was adopted by the 58th World Health Assembly and on June 15, 2007, it entered into force. The purpose and scope of the IHR (2005) are “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”
IHR (2005) was incorporated into Portugal’s domestic legal system through Notice 12/2008 issued by the Ministry of Foreign Affairs on January 3, 2008 and published on January 23, 2008.
VII. Current Crisis/Recent Developments
The Portuguese Ministry of Health has been reporting measures that the government has been taking to fight and prevent the spread of the Ebola virus in the country.
On October 10, 2014, the Ministry reported that the National Institute of Medical Emergencies, under the Contingency Plan of Action Against the Infection by Ebola Virus (Plano de Contingência de Atuação Face à Infeção por Vírus Ébola), is prepared to respond to any suspected cases occurring in the continental territory or in case of nationals who are being repatriated and possibly infected with the disease.
A Response Platform to the Ebola Virus Disease (Plataforma da Resposta a Doença por Vírus Ebola), which establishes a hierarchical command that can be adapted according to the evolution of the epidemiologic situation, was approved on October 15, 2014, during a meeting of the National Council of Public Health. The Council also discussed, among other things, the draft of a proposal for a Communication Plan and the legality of measures that may, eventually, limit individual rights.
On October 16, 2014, the General Board of Health issued Order No. 9/2014 (Despacho), which created the Response Platform to the Ebola Virus Disease at the national level. The objective of the Response Platform is the early detection of imported cases, and prevention or minimization of the occurrence of secondary cases and chains of transmission of the disease in the country. The Response Platform also defines, disseminates and operationalizes a Response/Contingency Plan, with guidelines and performance protocols.
The Portuguese Council of Ministers approved on October 23, 2014 the creation of a commission to coordinate the responses to and political decisions on Ebola of all sectors of government. The commission, coordinated by the Ministry of Health, will comprise governmental representatives in charge of Foreign Affairs, National Defense, Internal Administration, Infrastructure and Transportation, and representatives from the regional councils of Azores and Madeira.
Prepared by Eduardo Soares
Senior Foreign Law Specialist
 Id. art. 64(2)(a).
 Id. art. 64(2)(b).
 Lei No. 56/79, de 15 de Setembro, art. 1, http://www.parlamento.pt/Legislacao/Paginas/Leis_area_saude.aspx. Scroll down to Section I(2) and click on Lei No. 56/79. See also Base XII of Law No. 48/90, infra note 7.
5 Id. art. 2.
 Id. art. 6(2).
 Lei No. 48/90, de 24 de Agosto, http://www.parlamento.pt/Legislacao/Paginas/Leis_area_saude.aspx (scroll to Section I(1) and click on “Lei No. 48/90”).
 Id. Base I.
 Id. Base II.
 Id. Base III.
 Id. Base XI(1).
 Id. Base XI(2).
 Id. Base XVIII(1).
 Id. Base XVIII(3).
 Id. Base XIX(1).
 Id. Base XIX(3)(d).
 Id. Base XIX(3)(e).
 Id. Base XX(1).
 Id. Base XX(2).
 Id. Base XXV(1).
 Id. Base XXV(2).
 Id. Base XXV(3).
 Decreto-Lei No. 11/93, de 15 de Janeiro, art. 1, http://www.sg.min-saude.pt/sg/conteudos/legisaude/legis+sns.htm (scroll to Estatuto do SNS and click on “Decreto-Lei No. 11/93”).
 Id. art. 2.
 Id. Anexo, arts. 1, 2.
 Id. Anexo, Capítulo II.
 Id. Anexo, Capítulo VI.
 Decreto-Lei No. 124/2011, de 29 de Dezembro, art. 1, http://www.portaldasaude.pt/portal/conteudos/a+saude +em+portugal/ministerio/lei+organica/lei+organica3.htm.
 Id. art. 2(b).
 Id. art. 7(2).
 Direção-Geral da Saúde, http://www.dgs.pt/. The DGS is regulated by Decree No. 14 of January 26, 2012, http://www.dgs.pt/institucional/diplomas-legais-e-organograma.aspx (click on “Decreto Regulamentar No. 14/2012”).
 Decreto-Lei No. 124/2011, art. 4(c). Pursuant to article 2(1) of Law No. 4 of January 15, 2004, (Lei No. 4/2004, de 15 de Janeiro, http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1561&tabela=leis&ficha= 1&pagina=1&), direct administration consists of central and peripheral services which, by the nature of their powers and functions, must be subject to the direction of the respective member of the government. The services included in the direct administration of the state encompass those whose duties arise out of the exercise of sovereign powers, authority, and political representation of the state, or that involve the exercise of functions of study and creation, coordination, support and control, or supervision of other administrative services. Id. art. 2(2). In contrast, indirect administration consists of bodies vested with legal personality that are subject to the supervision and authority of the government. Services included in indirect administration are those that, due to their specificity, must not be subjected to the direct administration of the government, and, as a rule, are endowed with administrative and financial autonomy, including those of public institutions, which are governed by Law No. 3 of January 15, 2004 (Lei No. 3/2004, de, de 15 de Janeiro, http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=1472&tabela= leis&ficha=1&pagina=1&). See Ministério das Finanças, Direcção Geral da Administração e do Emprego Público, http://www.dgaep.gov.pt/index.cfm?OBJID=a21efe4b-790e-4b90-8371-0f45231ab4fc.
 Decreto-Lei No. 124/2011, art. 12(1).
 Id. art. 12(2)(a).
 Id. art. 12(2)(e).
 Instituto Nacional de Emergência Médica, http://www.inem.pt/. The INEM is regulated by Decree-Law No. 34/2012, http://www.sg.min-saude.pt/sg/conteudos/legisaude/legis+leoms.htm (scroll to “Instituto Nacional de Emergência Médica, IP,” and click on “Decreto-Lei No. 34/2012”).
 Decreto-Lei No. 124/2011, art. 5(c).
 Id. art. 5. For a discussion of the difference between direct and indirect administration, see note 32, supra.
 Id. art. 16(1).
 Id. art. 16(2)(f).
 Id. art. 16(2)(g).
 Lei No. 81/2009, de 21 de Agosto, http://www.parlamento.pt/Legislacao/Paginas/Leis_area_saude.aspx (scroll to Section 13. 7 and click on Lei No. 81/2009).
 Id. art. 1(1).
 Id. art. 2(1).
 Id. art. 2(2).
 Id. art. 3(1).
 Id. art. 1(2).
 Id. art. 4(1).
 Código da Propriedade Industrial, Decreto-Lei No. 36/2003, de 5 de Março, arts. 107(1)(c), 110(1), http://www.pgdlisboa.pt/leis/lei_print_articulado.php?tabela=leis&artigo_id=&nid=438&nversao=&tabela=leis.
 Id. art. 110(2).
 C.R.P. art. 26(2).
 Id. art. 35.
 Lei da Protecção de Dados Pessoais [Personal Data Protection Law], Lei No. 67/98, de 26 de Outubro, http://www.pgdlisboa.pt/pgdl/leis/lei_mostra_articulado.php?nid=156&tabela=leis&ficha=1&pagina=1.
 Lei No. 41/2004, de 18 de Agosto, http://www.pgdlisboa.pt/pgdl/leis/lei_mostra_articulado.php?nid= 707&tabela=leis&ficha=1&pagina=1.
 Lei No. 67/98, art. 2.
 Id. art. 3(a).
 Id. art. 3(b).
 Id. art. 7(1).
 Id. art. 7(2). Article 22(1) of Law No. 67/98 provides that CNPD is the national authority charged with the power to supervise and monitor compliance with the laws and regulations in the area of personal data protection, with strict respect for the human rights and the fundamental freedoms and guarantees provided by the Constitution and the law.
 Id. art. 7(4).
 Lei No. 41/2004, art. 1(2).
 Lei No. 67/98, art. 43.
 Id. art. 44.
 Id. art. 45.
 Id. art. 47.
 Lei No. 12/2005, de 26 de Janeiro, art. 1, http://www.parlamento.pt/Legislacao/Paginas/Leis_area_saude.aspx (scroll to Section II(6) and click on “Lei No. 12/2005”).
 Id. art. 2.
 Id. art. 3(1).
 Decreto-Lei No. 131/2014, de 29 de Agosto, art. 1, http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid= 2214&tabela=leis&nversao.
 Id. art. 20.
 Lei No. 5/2012, de 23 de Janeiro, art. 1, https://dre.pt/application/dir/pdf1s/2012/01/01600/0036000361.pdf.
 Id. art. 3.
 Id. art. 11(1).
 Id. art. 12(2).
 Ordem dos Médicos, Código Deontológico art. 86(1), https://www.ordemdosmedicos.pt/?lop=conteudo& op=9c838d2e45b2ad1094d42f4ef36764f6&id=cc42acc8ce334185e0193753adb6cb77.
 Id. art. 86(2).
 Id. art. 86(3).
 Id. art. 86(4).
 Id. art. 88(d).
 Código Penal, Decreto-Lei No. 48/95, de 15 de Março, as amended by Law No. 69/2014, de 29 de Agosto, art. 281(1)(a), http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=109&tabela=leis.
 Id. art. 281(3).
 Id. art. 283(1)(a).
 Id. art. 283(3).
 WHO, International Health Regulations (2d ed. 2005), http://www.who.int/ihr/publications/ 9789241596664/en/.
 Id. at 1.
 Direção-Geral de Saúde, http://www.dgs.pt/autoridade-de-saude-nacional/regulamento-sanitario-internacional.aspx (click on “Aviso nº 12/2008, Diário da República, 1ª série, nº 16, de 23 de Janeiro de 2008”).
 INEM Tem Plano de Contingência para Lidar com Infecções por Vírus Ebola, Portal da Saúde (Oct. 10, 2014), http://www.portaldasaude.pt/portal/conteudos/a+saude+em+portugal/noticias/inem+reforca+equipas.htm.
 Comunicado do Conselho Nacional de Saúde de 15/10/2014, Direção-Geral da Saúde, http://www.dgs.pt/a-direccao-geral-da-saude/comunicados-e-despachos-do-director-geral/comunicado-do-conselho-nacional-de-saude-publica.aspx (click on “Abrir Documento”)
 Direção-Geral da Saúde, Despacho No. 9/2014, de 15/10/2014, atualizado a 22/10/2014, http://www.dgs.pt/a-direccao-geral-da-saude/comunicados-e-despachos-do-director-geral/plataforma-de-resposta-a-doenca-por-virus-ebola.aspx (click on “Abrir Documento”).
 Id. No. 1.
 Governo Cria Comissão Interministerial de Coordenação da Resposta ao Ebola, Governo de Portugal, Ministério da Saúde (Oct. 23, 2014), http://www.portugal.gov.pt/pt/os-ministerios/ministerio-da-saude/mantenha-se-atualizado/20141023-ms-ebola.aspx#.VE0y0kQoybA.email.
Last Updated: 06/09/2015