*705In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Marie H., an alleged incapacitated person, the Mental Hygiene Legal Service, on behalf of Marie H., appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Rosato, J.), entered June 7, 2004, which, inter alia, after a hearing, granted the petition.
Ordered that the order and judgment is affirmed, without costs or disbursements.
At issue here is whether the testimony of Dr. Anthony Stern as to Marie H.’s mental state was admissible in the instant proceeding. Marie H. claims that Dr. Stern’s testimony was inadmissible as violative of the physician-patient privilege (see CPLR 4504 [a]).
The petition alleged that “[fjrom September 5, 2003 until October 31, 2003 Marie was a patient at Westchester County Medical Center/Behavioral Health Center . . . resulting from an involuntary admission through the Mobile Crisis Team.” On September 5, 2003, Dr. Anthony Stern examined Marie H. in her apartment as part of a “crisis team” operating pursuant to Mental Hygiene Law § 31.27. Dr. Stern diagnosed Marie H. as suffering from schizoaffective disorder with “manic and depressive ailment” and “severe mood swings in association with both hallucinations and . . . paranoid delusions.” Dr. Stern and his “teammates” concluded that it was necessary to hospitalize Marie H. involuntarily that same day. Dr. Stern did not prescribe treatment or otherwise participate in her treatment at the hospital and was unaware of the nature of her treatment.
On October 31, 2003, Marie H. was discharged from West-' Chester County Medical Center to her residence and the instant proceeding was commenced based upon the petitioner’s verified petition and the affidavit of Dr. Stern.
At the hearing on the petition, the petitioner, who is the sister of Marie H., bore the burden of proving by clear and convincing evidence that Marie H. was incapacitated (see Mental Hygiene Law § 81.12 [a]). The rules of evidence apply to proceedings pursuant to Mental Hygiene Law article 81, and Mental Hygiene Law § 81.12 (b), which permits the court to waive the rules of evidence “for good cause shown,” only "applies in uncontested proceedings (see Matter of Rosa B.-S. [William M.B.], 1 AD3d *706355 [2003]). In the instant case, Mental Hygiene Legal Service, appearing on behalf of Marie H. (hereinafter the appellant), contested the petition and moved to strike Dr. Stern’s affidavit and preclude his testimony based upon the physician-patient privilege. The petitioner opposed the motion on the ground that Dr. Stern was not a treating physician. The application was denied. After Dr. Stern and the petitioner testified and Marie H. presented no evidence, the petition was granted.
CPLR 4504 (a) provides that a person authorized to practice medicine “shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” unless the patient waives such privilege. The physician-patient privilege is “purely a legislative creation” with a number of exceptions (People v Sinski, 88 NY2d 487, 491 [1996]; see Matter of Nathan R., 184 Misc 2d 666, 668 [2000]). The burden is on the party asserting the privilege to show the existence of circumstances justifying its recognition (see Williams v Roosevelt Hosp., 66 NY2d 391, 397 [1985]; Matter of Nathan R., supra). The privilege is waived if the alleged incapacitated person affirmatively places his or her medical condition in issue (see Matter of Rosa B.-S., supra; Matter of Tara X., NYLJ, Sept. 18, 1996 at 27, col 1 [Sup Ct, Suffolk County, Prudenti, J.]).
In the instant case, Marie H. did not affirmatively place her medical condition in issue. She presented no evidence in her own behalf. Her contention is that Dr. Stern’s testimony was inadmissible pursuant to the physician-patient privilege, and consequently the petitioner failed to submit sufficient competent evidence to satisfy her burden of proof. We disagree.
The testimony of a treating physician is inadmissible in a proceeding pursuant to Mental Hygiene Law article 81 pursuant to the physician-patient privilege (see Matter of Rosa B.S., supra). However, Dr. Stern was not Marie H.s’ treating physician. He was part of a mobile crisis team whose function was to provide “[c]risis outreach services” defined as emergency psychiatric services including “evaluation, assessment and stabilization services; crisis reduction services; referral services; and other psychiatric emergency services” (Mental Hygiene Law § 31.27 [a] [3]).
Mental Hygiene Law § 31.27 was enacted as part of legislation to establish “Comprehensive Psychiatric Emergency Programs” in the state (see Mem of Assemblywoman Connelly, Governor’s Mem approving L 1989, ch 723, 1989 Legis Ann, at 313). Simultaneously with that provision, the Legislature *707enacted. Mental Hygiene Law § 9.40 which permits involuntary retention of a patient in a comprehensive psychiatric emergency program. Laws of 1989, chapter 723 also amended Mental Hygiene Law § 9.57 to provide that a “physician who has examined a person in a comprehensive psychiatric emergency program” is authorized to request the involuntary removal to a mental hospital of a person who appears to have mental illness “for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.”
As part of that statutory scheme, the Legislature amended Mental Hygiene Law § 9.59 (a) to provide that “any employee of a licensed comprehensive psychiatric emergency program, specially trained in accordance with standards developed by the commissioner, who transports a person to a hospital” is not liable for damages to the person transported to the hospital unless gross negligence is established (L 1989, ch 723, § 8). The Crisis Team was authorized to remove Marie H. to a hospital against her will and did in fact do so. Its conduct constituted a State action analogous to an arrest for which the State enjoys a qualified immunity from liability under 42 USC § 1983 (see Glass v Mayas, 984 F2d 55, 58 [1993]). The nature of this relationship bears little resemblance to the physician-patient relationship which is created “when professional services are rendered and accepted” by the patient pursuant to an express or implied contract (Heller v Peekskill Community Hosp., 198 AD2d 265 [1993] [emphasis added]).
At a hearing to determine whether a patient may be retained in a hospital for involuntary psychiatric care, the hospital “must establish by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment” (Matter of John P., 265 AD2d 559 [1999]; see Matter of Anonymous v Carmichael, 284 AD2d 182 [2001]). The hospital’s proof generally includes testimony by a psychiatrist or psychiatrists (see Matter of Consilvio, 8 AD3d 22, 24 [2004]). As a nontreating psychiatrist, Dr. Stern’s testimony would have been admissible in a hearing to determine whether further involuntary hospitalization was warranted (see Ughetto v Acrish, 130 AD2d 12, 15 [1987]). Applying the physician-patient privilege to such testimony would make it difficult to provide involuntary treatment for mental illness and would be contrary to the legislative scheme.
In any event, the unrebutted testimony of the petitioner, inter alia, describing Marie H.’s delusional behavior and her inability to manage her own affairs satisfied the petitioner’s burden pur*708suant to Mental Hygiene Law § 81.12 (a) (see Matter of Rosa B.-S., supra).
The appellant’s remaining contention is without merit. H. Miller, J.P., Cozier and Goldstein, JJ., concur.