Kuwait Court of Cassation principle number 166

Summary: - Establishing a treatment institution. Its condition. The person licensed to establish it must be Kuwaiti, whether a natural or legal person. - The word “Kuwaiti” appears in general terms in Law 49 of 1960 concerning Treatment Institutions. Effect thereof. It must be construed generally and may not be restricted without a restricting provision. Had the legislature intended to limit the granting of the licence to natural persons alone, excluding legal persons, it would not have lacked the means to provide for that expressly. - Health and medical requirements specific to treatment institutions. Specified by the annex to the Law, which permitted the Minister of Health to exempt from some of them where reasons justify such exemption, and also permitted him to add new requirements. Implication thereof. The Minister of Health’s power in this regard is a mere exception, to be confined to its extent and not expansively construed. It therefore may not extend to determining who is to be granted the licence; otherwise, he is deemed to have exceeded his competence. Rule: The provision in Article (2) of Law No. (49) of 1960 concerning Treatment Institutions that “No treatment institution may be established or managed except under a licence from the Public Health Department,” in Article (3) of the same Law that “A person licensed to establish a treatment institution must be Kuwaiti ...,” and in Article (7) thereof that “Treatment institutions must at all times satisfy the health and medical requirements set out in the annex to this Law. The Head of Public Health may, by a decision issued by him, grant exemption from some of these requirements in certain localities where reasons justify such exemption. He may add new requirements which he considers must be satisfied in any licensed institution, and the licensee must implement them within the period specified in the decision,” indicates that the legislature required a person licensed to establish a treatment institution to be Kuwaiti, whether a natural or legal person. The word “Kuwaiti” appears in general terms and must therefore be construed generally and may not be restricted without a restricting provision. Had the legislature intended to limit the granting of the licence to natural persons alone, excluding legal persons, it would not have lacked the means to provide for that expressly. Article (7) aforesaid required licensed treatment institutions to satisfy the health and medical requirements specified in the annex to the Law. These concern the specifications required for the operating room and the various departments of the treatment institution, such as the maternity department, radiology department, laboratory, and so forth, and the qualifications of physicians in the various specialties, such as surgery, anaesthesia, obstetrics, internal medicine, and others. It permitted the Minister of Health to grant exemption from some of these requirements where reasons justify such exemption, and also permitted him to add new requirements which he considers must be satisfied in the licensed institution. This means that the Minister of Health’s power in this regard is a mere exception, to be confined to its extent and not expansively construed. The provision restricted it to the aforesaid health and medical requirements. It does not extend to determining who is to be granted a licence to establish a treatment institution in the first place, which Article (3) aforesaid permitted for every Kuwaiti, whether a natural or legal person. The Minister of Health may not amend or add to this rule; otherwise, he exceeds the limits of his competence.