The chairman, Mr Justice Moriarty, said he will not make a "precipitous" ruling in relation to Mr Charles Haughey giving further evidence.
Mr Justice Moriarty said he was under an obligation to the Oireachtas to proceed with the tribunal's hearings and conclude its business as expeditiously as possible.
Responding to submissions made by Mr Eoin McGonigal SC, for Mr Haughey, and Mr John Coughlan SC, for the tribunal, the chairman said he was bound by common decency, fair principles and natural justice to have "very considerable regard" to the health of Mr Haughey.
"It goes without saying that if a weight of informed professional opinion were to establish, as a preponderant likelihood, that the requiring of further evidence from Mr Haughey was oppressive, unfair and likely to expose him to undue stress or to exacerbate his condition, I would then have to consider whether some form of seeking to conclude his evidence before the tribunal in some different venue or by some alternative, albeit less satisfactory procedure, could be devised."
He said he could not regard it as a fait accompli that Mr Haughey's consultant, Mr Peter McLean, could not consider any other alternative regime for Mr Haughey giving evidence.
He said he might now seek to have a medical examination of Mr Haughey conducted for the tribunal.
Mr Coughlan had earlier read out correspondence between the tribunal's solicitor, Mr John Davis, and the solicitor for Mr Haughey, Ms Deirdre Courtney, concerning Mr Haughey's ability to give evidence.
The chairman of the tribunal acknowledged "the seriousness of Mr Haughey's medical condition and the obvious distress associated with it", Mr Davis said in a letter to Ms Courtney on October 11th.
Mr Davis referred to medical reports on Mr Haughey which had been given to the tribunal, and a meeting on October 11th between the two legal teams and Mr McLean.
"The tribunal is relieved that Mr Haughey is not in any pain and is not receiving any treatment by way of pain relief. At the same time it is recognised that Mr Haughey has a generalised cancer of the prostate and that this is causing symptoms including lethargy, a feeling of being unwell and a loss of concentration, all of which are likely to affect his preparation for and the actual giving of evidence."
"The tribunal also recognises that any doctor advising a patient will, as a counsel of perfection, advise against exposure to the upset of the kind associated with the daily demands of (say) business or, in this case, attending the tribunal's daily sittings."
"At the same time it will be recalled that in forming this view of the likely impact of attendance at the tribunal to give evidence, Mr McLean was, as he conceded, ignorant of the actual nature of the proceedings and of the manner in which they were conducted. This is not to say that Mr McLean would not have been in a position to form a general impression of the likely impact of any exposure to public questioning on his patient."
Mr Davis said the tribunal accepted the view of Mr McGonigal that in the light of the latest medical report Mr Haughey was not ready to give evidence last week.
"However there is no suggestion that in his current state of health Mr Haughey's mental capacity is impaired. Noting the absence of pain, the absence of treatment for pain, and Mr McLean's confirmation that Mr Haughey is a physically strong man and a compliant patient, the tribunal has decided it must continue with its public duty."
Mr Davis noted "that as long ago as March of 1999, Dr Patrick Kelly indicated that Mr Haughey's relationship with the tribunal should be brought to a conclusion as soon as possible. It is perhaps regrettable that this was not brought to the attention of the tribunal at the time as it might have been easier at that time to make the appropriate arrangements to expedite the taking of the evidence of Mr Haughey."
On October 12th Ms Courtney responded saying Mr Haughey "and indeed we ourselves" were very disappointed the tribunal had not engaged its own medical team prior to meeting Mr McLean. She said her client's health was deteriorating.
Mr Davis, on October 13th, replied saying the tribunal's interest in Mr Haughey was limited to the context of his giving evidence.
"Any other interest would be prurient and an invasion of his privacy. What the tribunal seeks is to be as well informed as is reasonably practicable so that decisions concerning the taking of evidence from your client can properly take account of his testamentary capacity both mental and physical."
Mr Coughlan said there had been no response to this letter until Mr McGonigal had stood up yesterday morning and made his submission.
