Critical Period for Access to Healthcare and Waiting Times – Monitor

The holiday period is usually a period of significant restrictions on health services, especially in emergency and obstetric services. The law provides for the right to receive treatment within reasonable waiting periods, but it is useful to analyze the protection provided by the law when this reality is exposed to a crisis.

“Everyone has the right to health protection” – this is what Article 64 of the Constitution of the Portuguese Republic states. To guarantee this right, the Fundamental Law establishes that the State’s priorities are to ensure access to preventive, curative and rehabilitative medical care for all citizens, regardless of their economic situation; to ensure rational and effective coverage of the entire country in terms of human resources and health units; to direct its action towards the generalization of the costs of medical care and medicines; and to discipline and supervise commercial and private forms of medicine, coordinating them with the National Health Service, in order to guarantee adequate standards of efficiency and quality in public and private health institutions.

Despite constitutional protection, it is not enough to promote the right to access healthcare when it is actually required to ensure such access and in a timely manner. The Charter of Rights to Access to Healthcare by Users of the National Health Service sets maximum guaranteed response times (hereinafter referred to as “TMRG”), which vary depending on the type of healthcare, such as, for example, pathology, scheduling an appointment or performing complementary diagnostic and therapeutic means or scheduling surgery.

Based on this GuidelinesEach healthcare organization creates its own TMRG, which must be included in the activity plans, but must also be published to facilitate access by users. Therefore, there is a duty on the part of the organization to inform users of the TMRG it adopts and make it available to users.

There are many cases where the specified TMRG is not complied with, often due to shortcomings of the SNS, which does not have the necessary means to respond. Moreover, the Charter does not define a TMRG for cases involving the provision of urgent health care. In either case, it is urgent to assess how the user can protect his rights, i.e. what means of reaction are available.

If the establishment does not comply with the legally prescribed TMRG, the User may file a complaint with the Health Regulatory Authority, which entails administrative liability, which may result in the establishment being obliged to pay a fine. On the other hand, if the User considers that the non-compliance with the TMRG has caused any damage to his personal sphere, i.e. by impairing the quality of the services provided, affecting his health, the User may request legal action.

It turns out that the damage, in many cases, does not result from a concrete, identifiable behavior of a specific person, but rather from a set of fluctuations, small failures in the entire health system, which cannot be assessed in isolation. The consequences, in these cases, stem from the inability of the state as a whole to provide the necessary health care, or to do so in a timely manner. In this case too, the law provides for the possibility for the user to sue the state on the basis of so-called civil liability for service failure.

It is not uncommon for our legal system to be programmatic, where legal provisions are confused with the wishes of the legislator. This happens with several provisions relating to the state’s obligations in terms of providing health care. If the state fails to live up to the standards it has imposed itself, with such programmatic standards, the citizen has the opportunity to assert his rights. Unfortunately, these will never entail reversal of health consequences, if any, but only administrative or civil liability. It’s just that our health does not go on vacation.