The failed execution of Tennessee death row inmate Christa Pike has been much in the news recently. The means of intended execution was lethal injection, using barbiturate pentobarbital. In 2010 and 2011 , there were reports that the drugs for lethal injection had been imported from the UK This was followed by the imposition by the UK government of export controls.
Despite the UK ban, the State of Tennessee and the other 27 US States that use lethal injection as a method of execution (plus the US military and the US government) are obviously managing to source drugs for lethal injection. Those drugs may not, in fact, be licensed for the purpose of execution, and there appears to be concern in the insurance market that the use of drugs for execution may give rise to liabilities for insurers.
The International Underwriting Association(IUA) Clauses Committee has just published model clauses for insurance contracts relating to the use of drugs and pharmaceutical substances in capital punishment. The model clauses
- require the insured to take reasonable steps to establish and maintain controls over the preparation, compounding, dispensing and/or distribution of drugs or pharmaceutical substances sold and/or supplied and to mitigate the risk of such drugs or pharmaceutical substances being acquired or used to carry out a sentence of capital punishment.
- require the insured to provide records of relevant compliance policies, procedures and any other documentation to verify compliance.
- exclude liability on the part of insurers for any loss, damage, liability, cost or expense arising out of or in connection with the preparation, compounding, dispensing, distribution, sale or supply of drugs or pharmaceutical substances which have been acquired or used to carry out a sentence of capital punishment.
The IUA has provided a commentary on its work.