The Transport Minister has rejected a Coroner's call for a law change to make doctors register patients deemed unfit to drive with the New Zealand Transport Agency Waka Kotahi (NZTA).
The recommendation follows an inquiry into the death of 55-year-old Christian Herbulot during a fatal car crash in 2020.
On November 22, Herbulot left his home in Warkworth with his dog around 4:30pm. Half an hour later, several witnesses watched as his vehicle sped through an intersection and became airborne.
It entered a children's playground, clipped the top of play equipment, then continued into the Mahurangi River where it became completely submerged.
Rescue attempts were unsuccessful due to the depth and lack of visibility in the water.
CCTV footage showed the vehicle moving at high speed with no visible attempt to brake, while firefighters confirmed he was wearing his seatbelt at the time of the crash.
A report from Associate Coroner J R Smith stated NZTA's involvement could "reduce the chances of the occurrence of other deaths in circumstances similar to those in which the death occurred".
His review found from March 2015, Herbulot started seeing his GP with a range of symptoms that may have signalled the onset of neurological illness.
Some of these symptoms included double vision, difficulty in swallowing and altered speech. Reports into his health records also showed Herbulot had an accident in April 2018 where he fell asleep whilst driving.
Just one month later, he was witnessed having a nocturnal seizure, followed by a second seizure in March 2020.
Herbulot's GP stated they couldn't find a report standing him down from driving however noted several references in their database recommended he didn't drive.
In September 2018, one reference stated: "Neurologist has determined that he should not be driving... as cannot drive and is frequently hypersomnolent, sickness benefit seems quite appropriate."
Meanwhile, another reference in September 2019 stated: "Advised not to drive if feeling at all tired."
And three months later, Herbulot raised his own concerns with his doctor, stating: "Trying to get a job at a cafe but tired and concerned re driving safety."
Family and friends of Herbulot described him as "always nodding off" in statements taken from police. His ex-partner also said he would "pass out at the breakfast table".
One witness stated: "I am 99 percent sure that he hasn't done this intentionally because of the playground. He wouldn't hurt anyone else."
An investigation into the crash, conducted by the serious crash unit, found no mechanical faults with his vehicle. The report's conclusion found the crash occurred because Herbulot didn't have proper control of his vehicle at the time.
The Coroner's findings found Herbulot likely "suffered a seizure or sleep event that rendered him unconscious prior to the crash".
The cause of his death was drowning, secondary to the crash.
Smith said based on medical evidence, and in the opinion of his GP, Herbulot shouldn't have been driving.
Waka Kotahi has produced a booklet titled 'Medical Aspects to Drive: A Guide for Health Practitioners', which states that an individual should cease driving until there has been a period of 12 months without seizures.
But Smith said it is "not clear" if Herbulot was told by either his neurologist or his GP that he mustn't drive until he was symptom-free for a specific period of time.
He said it appears "the only guidance health practitioners have is the booklet".
It advises them to make a report to Waka Kotahi only when they believe a person unfit to drive is likely to continue driving outside of these restrictions.
However, there appears to be no legal requirements for a health professional to report that a licence holder has an 'at risk' medical condition that may affect their driving, Smith said.
He's recommending the Ministry of Transport consider making changes to the Land Transport Act 1998, requiring health practitioners to mandatorily report to NZTA if any patient is deemed unfit to drive.
When contacted by Newshub for comment, NZTA confirmed they have reviewed the Coroner's recommendations, along with the Ministry of Transport.
"NZTA and the Ministry of Transport had the opportunity to review and provide comment to the Coroner's draft recommendations on this case. We advised the Coroner that: Health practitioners already have a legal obligation to advise NZTA of any individual who poses a danger to public safety by continuing to drive when advised not to," a spokesperson said.
"There is currently a process in place to assist health practitioners to meet these obligations."
NZTA is currently reviewing the Medical Aspects of Fitness to Drive Guide.
"We consider there is scope to revise the content of the Guide in relation to the section 18 obligation considering this tragic case and the Coroner's recommendations."
NZTA's draft guidelines will be made available for consultation, and are expected to be released later this year.
Coroners will be invited to comment on the guidelines.
Transport Minister Simeon Brown told Newshub: "Every death on our roads is a tragedy for the families and communities that lose a loved one."
"I acknowledge the findings of the coroner in this case, and the wider issue of the licencing of drivers that may develop health conditions," Brown said.
However, Brown said changes to the guidelines won't require a change to the Land Transport Act.
