The case that changed me – Paul Baker

In 1995, I was involved in the case of the Crown v Keen. The matter concerned a pharmacist named Stuart Keen who was dispensing alternative brand medications for his patients in Wingham, a town on the Central North Coast near Taree. His patients were from a fairly low socio-economic area and Keen was providing them alternative cheaper-priced generic brand medications rather than what the doctor had prescribed. At the time, the law did not allow pharmacists to substitute medication, or the substitution of medication prescribed by the doctor, unless the doctor had ticked a box on the script that said, “regulation 24 endorsement”. The pharmacist intentionally broke the law by providing his customers with generic brands of medication. It was the same drug (bioequivalent) but manufactured by a different company. He did this because he felt very strongly that the law needed to be changed and the public had a right to access medication which they could afford.

Keen was prosecuted by Medicare for breaching the National Health Act. Why this case was interesting, was that we were representing a client who was a maverick, who was being prosecuted criminally and who was more than happy to say, “I’m guilty”. At the same time, I had dealings with health ministers Carmen Lawrence and Graham Richardson, who were seeking to have the law changed consistent with clients’ wishes. In regard to Keen’s actions, Lawrence said “I understand where his heart is, but I can’t understand where his head is because he’s clearly doing the wrong thing.”

Keen was found guilty, but no conviction was recorded, which was a positive outcome. This case led to a change in the law as pharmacists can now dispense generic brand medications. When you go into a pharmacy you’re often asked, “Would you like the generic brand equivalent?” 26 years later, when I hear that, I smile because I had something to do with how that came about. From a professional point of view, it was an interesting case as it dealt with illegality, social and public policy issues, the Government and the Pharmacy Guild of Australia.

Advocating for a client who has clearly done the wrong thing creates a tension between ethics and the law. I understood why he was doing what he was doing but having to counsel him was an interesting challenge professionally. I was a fairly junior lawyer at the time, so I relied on mentors such as the barrister Peter Dwyer. The key issue was the client had to be made aware that what he was doing was against the law and that the consequences would be significant if he persisted. I remember talking to him at length about alternative options for bringing about change.

This case cemented my focus in the area of health law. Even today, I get referrals from clients within the pharmacy sector, because they saw or felt that I went into bat for someone who was trying to do the right thing but went about it the wrong way. The case was also the catalyst for establishing Meridian Lawyers. This case put me on the map in the area of law I wanted to practise and helped me establish a law firm with an expansive health law practice, which has now grown to 159 people across Australia.