Kuwait Court of Cassation principle number 519

Summary: - Establishment of a therapeutic 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 Therapeutic Institutions. Its effect: it must be construed in its generality and may not be restricted without a restricting provision. Had the legislature intended to confine the grant of a licence to a natural person alone, to the exclusion of a legal person, it could have expressly so provided. - The health and medical requirements specific to therapeutic institutions. The annex to the Law specified them and permitted the Minister of Health to exempt from some of them where reasons justifying such exemption exist, and also permitted him to add new requirements. The implication: the Minister of Health’s authority in this regard is a pure exception, confined to its proper extent and not expansively construed. It may therefore not extend to determining who is to be granted a licence; otherwise, he would be exceeding his competence. Rule: The provision in Article (2) of Law No. (49) of 1960 concerning Therapeutic Institutions that “No therapeutic institution may be established or managed except under a licence from the Department of Public Health,” and in Article (3) of the same Law that “A person licensed to establish a therapeutic institution must be Kuwaiti ...,” and in Article (7) thereof that “Therapeutic 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 areas where reasons justifying such exemption exist. 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,” indicate that the legislature required a person licensed to establish a therapeutic institution to be Kuwaiti, whether a natural or legal person. The word “Kuwaiti” was expressed in general terms and must therefore be construed in its generality and may not be restricted without a restricting provision. Had the legislature intended to confine the grant of a licence to a natural person alone, to the exclusion of a legal person, it could have expressly so provided. The aforementioned Article (7) required licensed therapeutic 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 therapeutic 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 justifying such exemption exist, 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 authority in this regard is a pure exception, confined to its proper extent and not expansively construed. The provision confined it to the aforementioned health and medical requirements, and it does not extend to determining who is to be granted a licence to establish the therapeutic institution in the first place, which the aforementioned Article (3) permitted for every Kuwaiti, whether a natural or legal person. The Minister of Health may not amend or add to this rule; otherwise, he would be exceeding the limits of his competence.