Court rejects appeal by Cork mother who harassed doctor

The Court of Appeal has rejected a bid by a mother to set aside her plea of guilty to the repeated harassment of a doctor who was working at the hospital where her son was awaiting a kidney transplant.

Marlies Walsh, representing herself at the three-judge court, argued that she was given ineffective assistance by her lawyers and was under duress when she entered the guilty plea as she had to prioritise her son's care. 

She also argued that the investigation into her offending was flawed because no recording was made of an interview she gave to gardaí.

In November last year, Ms Walsh pleaded guilty to harassing the doctor in 2018 and 2019 and was given a fully-suspended two-year sentence.

No previous convictions 

Walsh (51) of Pedlars Cross, Clonakilty, Co Cork, pleaded guilty to one count of harassment at Temple Street Hospital, Dublin. She had no previous convictions.

Dublin Circuit Criminal Court heard that Walsh contacted the doctor and others at the hospital by phone and email over a period between December 2017 and August 2020 as she wanted to work as a patient advocate. 

Her son, now in his early 20s, was a kidney transplant patient at the hospital.

Judge Elma Sheahan in the Circuit Court said Walsh had engaged in “repeated harassment” of the doctor and every effort had been made to get Walsh to stop her behaviour before a formal complaint was made to gardaí.

Judge Sheahan imposed a two-year sentence, which she suspended on strict conditions. She also barred Walsh from communicating with the doctor or approaching his residence or place of work for 20 years.

Appeal court judgment 

Delivering the appeal court's judgment, Mr Justice John Edwards noted that within one week of the trial, Ms Walsh underwent tests to see if she could be a kidney donor for her son. 

While he said that this "must have been an extremely stressful time for the appellant, there is no suggestion that she entered her plea of guilty on an uninformed basis."

He said that she had not offered "any cogent evidence that her will was so overborne by the undoubted stress that she was under that she was in truth coerced into pleading and that her plea was not a voluntary one."

She provided no medical evidence or affidavit to support her claim, he said, adding: "Such limited information as she has provided concerning the basis of her complaint suggests that, notwithstanding that she was highly stressed, she fully understood what she was doing, in circumstances where she was legally represented and had been advised as to her options." 

He said there was no suggestion her lawyers or anyone else had exerted undue pressure on her or sought to coerce her to plead guilty.

Her decision to plead guilty so she could get back to her family is "not duress in the legal sense such as might justify the setting aside of her plea of guilty," Mr Justice Edwards said.

The judge also rejected the complaint regarding alleged inadequate representation by counsel. He said there is no evidence that her lawyers were instructed to apply for an adjournment and refused to do so or that she was unable to give instructions or that her instructions were not followed. There was also no evidence or suggestion she didn't understand the advice she was given.

Mr Justice Edwards said that one interpretation of Ms Walsh's complaint is that she has "developed post-transactional regret for having pleaded".

Her complaint regarding the quality of the garda investigation, the judge said, would have been an issue for trial and is not relevant where she had decided to plead guilty. Ms Walsh will appeal the severity of her sentence at a later hearing.

Previous hearing 

At the sentencing hearing in the lower court, Garda Eimear Cantwell told Kate Egan BL, prosecuting, that Walsh's son had been a kidney transplant patient at Temple Street Hospital. Walsh had indicated to the team that she wished to become involved in advocacy on behalf of patients and families.

The transplant team declined her offer as there was already a full-time team of this nature in place. Her son's care was transferred to Cork but Walsh continued to contact the hospital and doctors. She also made unannounced visits to Temple Street.

The doctor later received a parcel from Walsh, which contained her CV.

Walsh also copied him into emails sent to other hospital staff in which she expressed her desire to take on a patient advocacy role. In April 2018, the hospital asked Walsh not to contact Temple Street, unless it related to her son's care.

On August 14, 2018, the doctor became alarmed after receiving an envelope from Walsh which contained a handmade object tied with a ribbon, post-it notes and five A4 sheets.

One of the pages included a drawing of a stick figure with no legs and a message asking the doctor to ring her.

Another envelope sent by Walsh to the doctor contained three small envelopes labelled 'past', 'present' and 'future' and contained items including Walsh's business card, a spool of golden thread and a note using the question style of 'Who Wants to be a Millionaire?' with Walsh as the 'phone a friend' option.

At the Court of Appeal Walsh, who represented herself, submitted that she had been under duress at the time she entered her guilty plea.

"I never said I didn't make numerous contacts for my son's quality of life and healthcare. It was my duty of care. I felt I had a duty to offer my help. I highlighted that," she told the appeal court.

Walsh said she found not being able to help her own child "very stressful" and said she felt that he had met with barriers regarding the "bespoke nature" of his care, which she said needed to be taken into account for him to have optimum help.

The appellant said she felt "stonewalled" and that "sadly, we just had to work around it but it wasn't like he didn't pick up on that. We were without the basics of reassurance, confidence and trust".

Walsh said "there was no fear or threat coming from our end" and claimed hospital staff "overreacted - there was an element of hysteria to it".

Mr Justice John Edwards said he did "not doubt the sincerity that you [Walsh] were trying to raise concerns".

"But at the end of the day, you received cautions from gardaí and cease-and-desist letters from the hospital. You were not complying and the preferment was a charge of harassment. In interviews, you admitted the harassment. In the course of the trial you pleaded guilty and made admissions in a situation when you were represented by a solicitor and a barrister," said Mr Justice Edwards.

'Frustrated'

"I felt I had no choice as to why I pleaded guilty this one time," said Walsh, who added that the issue was about the duty of care of the hospital but her legal team sought to frame the case as a "political issue, or a protest issue".

Walsh said she had to come to Dublin for her case and found it a "protracted" process with her legal team while her son was sick at home in Cork.

Walsh said that she pleaded guilty after the prosecution's opening speech in order to return home to her son. "The frustration is this could have been avoided," said Walsh.

"You can't plead guilty and then say 'I was frustrated'," said Mr Justice Edwards.

"I was frustrated with the legal expertise in what I thought were instructions that would not be coming across to the court. That was the duress. He was at home. I had to prioritise him. What could I do?" said Walsh.

"The judge asked you if it was the case you wished to plead guilty and you confirmed and you pleaded guilty. You have to show us a legal deficiency. That you regretted the decision is not a basis on which it can be set aside," said Mr Justice Edwards.